author: Mr. Presiding Justice Burke Mr. Justice Kiley

text:
    Alvin Douglas et al., Plaintiffs. Thomas Burget, Appellee, v. Athens Market Corporation and Chicago Title and Trust Company, Appellants.
    Gen. No. 42,499.
    Opinion filed June 30, 1943.
    Lord, Bissell & Kadyk, of Chicago, for certain appellant; Leonard F. Martin, Bruce S. Parkhill and G-aynor K. Rutherford, all of Chicago, of counsel.
    Samuel A. Strauss, of Chicago, for certain other appellant.

      H. H. Patterson and George W.- Hansen, both of Chicago, for appellee; Edmund C. Maurer, of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

In a complaint filed in the superior court of Cook county, Alvin Douglas, Thomas Burget, Willie Burget, Maybelle Burget, Ross Burget, Carolyn Douglas and Dolores Douglas, a minor by Carolyn Douglas, her mother and next friend, sought to recover damages under the Illinois Liquor Control Act for personal injuries suffered by Thomas Burget and Alvin Douglas, naming the Athens Market Corporation and Chicago Title & Trust Company, a corporation, as defendants. On motion of plaintiffs the case was dismissed with prejudice as to all plaintiffs except Alvin Douglas and Thomas Burget. Issue was joined and the case was tried before the court and a jury, resulting in a verdict -against both defendants in favor of Thomas Bur-get for $20,000 and in favor of both defendants and against Alvin Douglas. The ruling on the motion by the defendants for a directed verdict was reserved. Motions by the defendants for judgment notwithstanding the verdict and for a new trial were denied and judgment was entered on the verdict, to reverse which this appeal is prosecuted by defendants. No appeal has been taken by Alvin. Douglas. For convenience, we will refer to Thomas Burget as the plaintiff.

The first criticism leveled at the judgment is that the trial court erred in refusing to direct a verdict for defendants and in refusing to enter a judgment in their favor non obstante veredicto. They assert that plaintiff was guilty of contributory negligence.as a matter of law in purchasing liquor which contributed to cause the intoxication of his alleged assailant. Plaintiff maintains that he was not guilty of contribu-tory negligence as a matter of law and that the question was properly left to the jury. We are, therefore, confronted with the question whether the evidence, giving plaintiff the benefit of all facts proved and all just inferences therefrom, presented an issue of fact for the jury. On Saturday evening, March 18, 1939, an affray took place in a tavern located at the northwest corner of Harrison and Halsted streets, Chicago, during the course of which plaintiff was struck in the left eye, necessitating its removal the following Monday morning. The tavern was operated by the Athens Market Corporation and the Chicago Title & Trust Company was the owner and lessor of the premises. Harrison street runs in an easterly and westerly direction and Halsted street runs in a northery and southerly direction. At the time of the occurrence plaintiff was living at the Lake Menard Hotel, 336 North Menard avenue, Chicago, and was engaged- in the business of hauling long distance freight for the Mutual Trucking Company in trucks leased by him to that company. His garage was located on the south side of Harrison street, a few doors east of Halsted street. The tavern was located just west of a grocery and market, which was operated by the Athens Market Corporation and was separated from the market by a glass partition. The tavern had two doors opening on Harrison street, one being at the east and the other at the west end of the bar. The bar ran east and west along the south, or Harrison street, side of the tavern. -Along the west side of the tavern were three or four booths with hooks on the partitions between them to hang coats. The tavern also served meals and in the center of the room were some tables. On the north side of the room a swinging door opened into the kitchen. At the time of the trial plaintiff was 31 years of age. Plaintiff introduced six witnesses, namely, James Humphreys, a safety inspector of trucks for Midwest Haulers, Inc., and Mutual Trucking Company, who lived at the same hotel as plaintiff, Arthur Scott Groves, a truck dispatcher for the Midwest Haulers, Inc., and Mutual Trucking Company, Alvin Douglas, a truck driver for Mutual Trucking Company, two doctors and himself. Seven witnesses testified on behalf of defendants, namely, Frederick Julian, a coijrt reporter, Tom Salapatas, a fruit and vegetable salesman, Cus Manos, a waiter and bartender at the tavern, Nick Psaltis, a waiter in the dining room at the tavern and also a cook in the kitchen, Thomas Sackellson, referred to in the testimony as Tom, or Tom the Greek, the assailant,who worked at a fruit auction house, John Rogers, a real estate agent, and Nicholas Choconas, secretary of the Athens Market Corporation, and who managed the grocery store.

Plaintiff testified that he was in the tavern nearly every day that he was in town; that he had his meals there “most every day”; that the drivers and mechanics from the garage ate there; that on the day of the occurrence he came to the tavern about 11:00 a. m.; that he had a cup of coffee and remained there about 15 minutes; that he then went to his garage to supervise the servicing of trucks; that he was not due to go out on a trip until Sunday night; that he returned to the tavern about 3 o’clock in the afternoon; that he ate there; that other truck drivers were there and some of them cashed their checks there. He did not rcall whether anyone went with him to the tavern, but said Humphreys was there when he went in, and that later Douglas came in and joined plaintiff, Humphreys and a couple of truck drivers at the bar. Later Groves joined them and about 5:30 or 6 o’clock Tom Sackellson came in with his sister and brother-in-law. Plaintiff had known Sackellson before, having frequently seen him in the tavern. Humphreys also knew him. Neither Douglas or Groves had known him previously. They were all drinking beer and whiskey and each took his turn buying a round of drinks for the group. Witness testified that he, Douglas, Sackellson and the others were sitting and drinking together as long as witness was there, all hnying a round of drinks for the others; that Sackellson bought drinks for him and that he (plaintiff) bought a round of drinks; that Tom drank beer and had a couple of shots of whiskey; that Tom had several drinks in the tavern that night; that he did not recall how many drinks he saw sold to him or taken by Tom while he' (plaintiff) was there “because we were buying back and forth.” Witness further, testified that he left the tavern about 7 o ’clock, or shortly after that, and went back to his garage where he got some trucks ready to go out that night, and that he left Tom and the other men at the bar. Witness stated that Tom became intoxicated; that it was between 6 and 7 o’clock when he first discovered that Tom was intoxicated; that Tom showed it by the loud tone of his voice and actions. Witness testified that he was not getting drunk, but admitted in his deposition, taken on October 23, 1939, he had answered that at the time he noticed Tom getting drunk “we was all getting drunk”; that he did not see Tom or the other men until he came back to the tavern at about 10:00 p. m., approximately three hours later; that he knew nothing about an altercation between Tom and the other truck drivers that had occurred after he' had left the tavern. Witness stated that he returned to the tavern about 10:00 p. m. and that he was assaulted two or three minutes after he came in. He had just gone back to the rear of the tavern near the kitchen .to hang up his coat, when Tom, with several men following him, rushed in the door. Tom had a bottle in his hand and hit Douglas over the head and came directly at plaintiff and struck him with the bottle which was'then broken and plaintiff’s eye was badly cut. Plaintiff was knocked to the floor and crawled into the kitchen where one of the cooks gave him a towel to hold over his eye. Plaintiff remained conscious, but after he was hit did not see any of the fighting that went on in the tavern. He was taken in a cab to the West Side Hospital. Humphreys and Tom Sackellson went with him in the cab. From there he was taken to the County Hospital. The next day, Sunday, his eye was examined and on Monday the eye was removed. He remained in the hospital 16 days.

There is a conflict in the testimony as to the exact time of the occurrence. Plaintiff testified that he re-, turned to the tavern between 9 and 10 o ’clock, but did not recall what time the fight broke out but said it was not more than two or three minutes after he returned to the tavern. Humphreys and Groves, testifying for plaintiff, said the fight happened around 10 o’clock. Defendants’ witness Manos, the bartender, says it was about five or ten minutes after 11:00 o’clock; Psaltis, the waiter, that it was around 11 or 11:30; Sackellson, the alleged assailant, testified he did not know exactly but’would say it was about 11:15; Salapatas, who came in around 10 or 10:30 with Rogers and a Mr. Kokinos to eat supper and were sitting at the table where they were waiting to be served their meals, thought it happened around 11 o ’clock. Plaintiff had no drinks in the two or three minutes that elapsed from the time he came in until he was hit. Tom was at the bar drinking practically all of the time from 7:00 p.. m. on until plaintiff was injured, according to Humphreys, Groves and Douglas. A bartender at the tavern continued to sell liquor to Tom and the other men at the bar from 7:00 p. m. until the assault occurred. There was testimony of an altercation between Groves, Douglas and Tom and all of them went out on the sidewalk. Plaintiff was not present at this altercation and knew nothing of it. There was a fight on the sidewalk. After this sidewalk fracas Tom did not return to the tavern, but the other men did. There was evidence that about 20 minutes after the sidewalk altercation plaintiff came into the tavern and that Tom was not in the tavern at that time. There was evidence that about two or three minutes after plaintiff came into the tavern some boys or men came in with Tom in the lead, and that Tom had a bottle in his hand with which he struck Douglas, knocking him to the floor, and that Tom then struck' plaintiff.

Sackellson .testified that he left the tavern with his sister and brother-in-law and attended a dance on the second floor of the same building; that when he came back to the tavern from the dance and joined Humphreys, Groves and Douglas, plaintiff was there, and that plaintiff bought him (Sackellson) a drink at that time. Manos, the bartender, said Burget was there at that time, and that they were all buying drinks for the bunch. Psaltis said Burget was there then and that they were all drinking together. Psaltis and Rogers, who came in together around 10 or 10:30, prior to the fight, testified that Burget, Sackellson and others were drinking at the bar when they came in. Choconas, the grocer, looking through the glass partition between the grocery store and the tavern, saw Burget sitting at the bar drinking with Sackellson and a couple of other men about 10:30 as he was locking up the grocery department. Sackellson testified that he did not take any liquor with him from the tavern to the dance hall, nor did the tavern serve any drinks in the dance hall. There was a bar in the dance hall but there was no evidence that Sackellson had anything to drink there. He further testified that he did not hit Burget, in which .he is corroborated by Manos. Humphreys testified that when the men rushed in the doors he saw Tom start for Burget. Groves testified that he saw Tom among the crowd that came in but did not see what happened to Douglas or Burget. Douglas testified that when Tom came in he made for Tom and that Tom hit him, Douglas, over the head with the bottle. Humphreys testified that on the way to the hospital in the cab Tom said to plaintiff: “I am sorry I hit you, it wouldn’t have happened if I had not been intoxicated.” Plaintiff testified that Tom came to see him at the hospital the day after the accident and said: “I am sorry I hit you. It wouldn’t have happened if I hadn’t been drunk.” On cross-examination, Sackellson denied making these remarks to Burget or Humphreys. Plaintiff admitted having answered on his deposition that at the time of the occurrence he was intoxicated. He stated that Tom was at the bar shortly before the fight stalled and that he did not “just exactly remember what went on there,” because he had plenty to drink. When asked whether on his deposition he testified that he went back to the tavern the third time some time around 9 o’clock; that Groves, Douglas and Humphreys and Tom, the Greek, were there then; that all of them drank whiskey again; that everybody was buying each other drinks; that ‘ ‘ each fellow would buy his turn or, that is — it does so happen. This Greek and myself I know for sure bought drinks, and the other fellows of course”; that he bought Sackellson a drink and Sackellson also bought him drinks, Burget answered: “I don’t remember that, the last time I was there.” A court reporter who took his deposition testified from his original notes that Burget on the taking of the deposition made the answers about which he was asked at the trial.

There was evidence which justified the jury in finding that Tom Sackellson, while intoxicated, assaulted plaintiff, thereby causing the loss of the latter’s eye, and that the alcoholic beverages purchased from the Athens Market Corporation brought about the intoxication of Sackellson. In considering the propriety of the allowance of a motion for a judgment notwithstanding the verdict, we accept the testimony favorable to plaintiff that when he returned from his place of business in the evening he did not know about the altercation, or about the brawl on the sidewalk, that before he had an opportunity to resume drinking Tom and the other men rushed in from the street, at which time Douglas and then plaintiff were assaulted by Sackellson. Nevertheless, defendants insist that judgment non obstante veredicto should be rendered in their favor because plaintiff was guilty of contributory negligence as a matter of law ,in purchasing liquor which contributed to cause the intoxication of Sackellson. Plaintiff maintains that he was not guilty of contributory negligence as a matter of law and that the question was properly left to the jury. He also argues that contributory negligence is not a defense to an action under the Dram Shop Act. Plaintiff states that he had not been in the tavern for three or four minutes prior to the assault and had bought but one round of' drinks for his assailant and his friends; that he knew nothing of the occurrence because he was at work in his garage from 7:00 p. m. until shortly before he was hit; that the bartender at the tavern continued to sell liquor to the assailant and the other men at the bar from 7:00 p. m. until the assault occurred, and he inquires whether it can be said that he has no rights under the Dram Shop Act because three or four hours prior to the time he was injured, he purchased one round of drinks, one of which was consumed by his assailant. He also asks whether a tavern keeper may sell and continue to sell intoxicating liquors to men who are boisterous and apparently intoxicated over a period of three or four hours and then escape liability for an assault by one of the patrons who has become intoxicated, the assault being committed upon one who has just entered the tavern and who has not been there for three or four hours before. Plaintiff maintains that it is for the jury to say whether or not the purchase of an amount of drinks prior to 7:00 p. m. contributed to cause the intoxication of plaintiff’s assailant some time after 10:00 p. m., or according to defendants’ witnesses, after 11:00 p. m., and that this precise point was presented to the jury for determination by an instruction submitted by defendants. Plaintiff testified that lie as well as the others bought a round of drinks, but that he did not recall just how many drinks he saw sold or taken by Sackellson while he was there “because we were buying back and forth.” Plaintiff’s witness Douglas testified that he, plaintiff, Tom and the other fellows were drinking together at the bar, each one taking turns buying a drink. It is undisputed that when plaintiff left the tavern about 7:00 p. m. Tom had then become intoxicated and plaintiff knew he was intoxicated. At the time plaintiff left the tavern Tom was still there and he was drinking with Humphreys, Croves and Douglas. We find that Tom was on one continuous spree from the time he became intoxicated while drinking with plaintiff earlier in the evening until the assault. We agree with defendants that the only possible conclusion that can be reached from the evidence is that the liquor purchased for Tom by plaintiff contributed to Tom’s intoxicated condition at the time of the injury. There is no evidence that Tom had anything to drink before he came into the tavern around 5:30 or 6:00 p. m. with his sister and brother-in-law and joined plaintiff and his crowd at the bar.

In support of his argument that contributory negligence is not a defense under the Dram Shop Act, plaintiff cites Wall v. Allen, 244 Ill. 456; O’Connor v. Rathje, 368 Ill. 83; Garrity v. Eiger, 272 Ill. 127; Hyba v. C. A. Horneman, Inc., 302 Ill. App. 143, and other cases. We have read these cases and are of the opinion that they do not support the principle contended for. Section 14 of Article VI of the Dram Shop Act (sec. 135, ch. 43, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 68.042]) affords a right of action to every person who shall be injured by any intoxicated person, or in the consequence of intoxication, habitual or otherwise, against any person or persons who shall by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part of such person, and also imposes a liability on any person owning-, renting, leasing or permitting the occupancy of any building or premises, and having knowledge that alcoholic liquors are > to be sold therein, or, who, having leased the same for other purposes shall knowingly permit the sale therein of any alcoholic liquors that have caused in whole or in part the intoxication of any person. In an action based upon this section a plaintiff is not required to make any showing of negligence. All he is required to do is to prove that the section was violated. Defendants argue that plaintiff was guilty of contributory negligence as a matter of law in purchasing liquor which contributed to cause the intoxication of his alleged assailant. In the case of Hays v. Waite, 36 Ill. App. 397, the court said (400):

“The courts have repeatedly had occasion to consider the very question involved in this record, and we know of no case where any person has been permitted to recover from saloonkeepers for injuries received at the hands of intoxicated persons under similar statutes to our own, where the person who had received the injury had been an active agent in causing the drunkenness.”

We do not believe that this states a rule of contributory negligence. Contributory negligence implies that the action is predicated upon negligence. The action in the instant case is not predicated upon negligence, but upon violation of the Dram Shop Act. ' It is the law of this State that a plaintiff who participates in bringing about the intoxication of another, whose intoxication causes him to injure the plaintiff, may not recover. Forsberg v. Around Town Club, Inc., 316 Ill. App. 661; James v. Wicker, 309 Ill. App. 397; Bowman v. O’Brien, 303 Ill. App. 630; People v. Linck, 71 Ill. App. 358; Beget v. Bell, 77 Ill. 593. At the time Sackellson joined the plaintiff and his friends, he (Sackellson) was sober. Plaintiff participated in the purchase of rounds of drinks for all of the party, including Sackellson, and at the time plaintiff left the party to go to his place of business, Sackellson was intoxicated and continued to drink intoxicating liquors in the same tavern. Shortly after the return of plaintiff, about three hours having elapsed, plaintiff was assaulted. It is apparent that Tom did not become sober during the time plaintiff was absent. It is clear that plaintiff was an active participant in causing Sackellson’s intoxication. We agree that the record presented a case where the court was required as a matter of law to direct a verdict on the ground that plaintiff was an active participant in causing his assailant’s intoxication, and that it is now our duty to direct the entry of a judgment non obstante veredicto for the defendants and against plaintiff. We have read the case of Lester v. Bugni, 316 Ill. App. 19, in which a judgment based on the Dram Shop Act was sustained in favor of a 17 year old boy. In that case there was evidence that the boy participated in the purchase and drinking of some of the liquor, but the circumstances were such as to make the case clearly distinguishable from the case at bar and from other cases in which recovery has been denied because of such participation.

Because of the views expressed, it is unnecessary to consider the remaining points advanced by defendants, namely that the judgment is against the manifest weight of the evidence and that the judgment is excessive. For the reasons stated, the judgment of the superior court of Cook county is reversed and the cause remanded with directions to enter a judgment for costs notwithstanding the verdict in favor of defendants and against plaintiff.

Judgment reversed and cause remanded with directions.

Hebel, J., concurs.

Mr. Justice Kiley

dissenting: The majority opinion decided that the trial court committed error by refusing to enter judgment for defendant notwithstanding the verdict in favor of plaintiff, because he was an active participant in causing Sackellson’s intoxication.

Taking the evidence and proper inferences most favorable to plaintiff, as we must on the vital point, we would have to assume that plaintiff came to the tavern in the forenoon for breakfast, went to his nearby place of business, worked until 3 o’clock in the afternoon, returned then to the tavern and remained drinking with friends until about 7 o’clock; that Sackellson joined the group about 5:30 or 6:00 o’clock; that plaintiff left about 7:00, returned to work leaving the others in the group at the tavern; and that he again returned to the tavern about 10:00 o’clock and, after hanging up his coat and before having had a drink, Sackellson charged into the tavern and assaulted him. According to his testimony, he purchased a drink for his assailant in the hour or hour and a half before 7:00 o ’clock. Because of this fact the majority opinion applied the general statement of law that plaintiff having participated in causing Sackellson’s intoxication, he was guilty of contributory negligence and cannot recover. My view is that that statement made in Forsberg v. Around Town Club, Inc., 316 Ill. App. 661, is misleading as its application here shows. The authorities given in the Forsberg case for the statement are Hays v. Waite, 36 Ill. App. 397 and Bowman v. O’Brien, 303 Ill. App. 630. In those cases the assault was the final link in an unbroken chain of events in which assailant and plaintiff were associated. It is interesting to note that in the Hays case the court observed that Hays was an active agent in keeping his assailant intoxicated until the assault occurred. In the Bowman case this court held that plaintiff could not recover because his injuries were due to an act of provocation on his part. The three cases mentioned, and James v. Wicker, 309 Ill. App. 397; People v. Linck, 71 Ill. App. 358 and Reget v. Bell, 77 Ill. 593, are cited in the majority opinion as authority for the statement of law applied. In the Wicker case, there was the same unbroken chain of circumstances as were found in the facts of the Forsberg, Hays and Bowman cases, and this court said that plaintiff there was not an innocent person who alone was entitled to recover under the act. Had Burget been assaulted before leaving at 7 o’clock, so that the act was connected with the drinking which preceded his leaving, in which he and his assailant participated and during which plaintiff bought a drink, the Hays, Bowman, Wicker and Forsberg cases would apply in defendant’s favor. In the Linck case the injured party procured his own intoxication and sought to recover damages for injuries which resulted, and the court said the statute was intended to cover only those innocently injured, but then went on to say that the party complaining must be free from complicity in procuring the intoxication. In the Beget case a widow whose husband’s death was caused by drinking, sought to recover and the court found she could have broken the jug of whiskey at her husband’s bedside and so have prevented his fatal intoxication and concluded she was instrumental in bringing the loss on herself and a willing party to her husband’s conduct. In the Forsberg case, following the general statement alluded to, the opinion concluded with the specific finding that plaintiff was not such an innocent suitor as the act contemplated.

Consideration of these cases leads me to the conclusion that the true test is whether the plaintiff in any case was an innocent party, or whether his conduct was wrongful and contributed to bringing about Ms injuries.

Giving plaintiff the benefit of proper inferences, we may say that when he left at 7 o’clock to work for three hours presumably he was not intoxicated, and while when he left Sackellson had grown boisterous, that fact may have accelerated plaintiff’s departure; and that he did not know when he returned to the tavern at 10:00 o’clock that Sackellsou was still about tbe tavern, and that plaintiff relied upon tbe tavern having long since ceased to sell intoxicating liquor to Sackellson. The assailant was not in the tavern when plaintiff returned at 10 o ’clock. Had he been and had plaintiff known it when he entered, and had plaintiff observing Sackellson’s drunken.state arranged to stay or resume drinking with him, or, seeing Sackellson’s condition had not sought to evade him, plaintiff would not be an innocent party. That is not the case here.

It is my opinion that it cannot be said as a matter of law that the interlude between 7:00 and 10:00 o’clock, during which it appears that Sackellson’s boisterous mood grew into the fighting, dangerous one, was not sufficient to break the chain of events in plaintiff’s favor; and that, consequently, the question of plaintiff’s innocence was for the jury.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Dorothy Gibson, Plaintiff in Error.
    Gen. No. 42,502.

      Opinion filed June 30, 1943.
    W. G. Anderson, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Eemee and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

In an information filed in the municipal court of Chicago on April 29, 1942, Dorothy Gibson was charged with the offense of petit larceny of $14.75. On June 5, 1942 she entered a plea of not guilty and waived trial by jury. The trial was commenced and on motion of the State’s Attorney was postponed to July 9', 1942. On that day, pursuant to leave granted, the State’s Attorney filed an amended information. The only difference between the original information and the amended information is that the former charged that the offense was committed “on the . . . day of May, 1942,” while the latter charged that the offense was committed * ‘ on the 18th day of May, 1942. ’ ’ After the filing of the amended information the defendant did not plead de novo. On July 9, 1942 the trial was resumed, resulting in a finding that the defendant was guilty in manner and form as charged in the information and that the value of the property stolen was $14.75. Judgment was entered on the finding and defendant was sentenced to serve a term of nine months in the county jail and to pay a fine of $100. She prosecutes this writ of error to reverse the judgment.

The first point presented is that where an amended information is filed the original information is superseded and the defendant must plead over again. Def endant asserts that the court erred in proceeding with the trial without requiring her to plead again. The purpose of amending the information in the instant case was to supply the date. The month and year were alleged. This amendment was a matter of form. There was no substantial difference between the original information and the amended information. The defendant undoubtedly had the right to withdraw her former plea and to plead anew. By going to trial on the plea to the original information she elected to abide by that plea. People v. Wancoski, 209 Ill. App. 47. While the better practice is to require the defendant to plead de novo after the filing of an amended information, failure to do so does not constitute reversible error.

Defendant urges that “in the trial of a criminal case the defendant must be represented by counsel, without which the court is not legally constituted, in. consequence of which the trial court loses jurisdiction in the course of the proceedings.” The defendant states that the record affirmatively shows that she was not represented by counsel. In support of this statement she calls attention to the portion of the record stating: “The People being now represented by the State’s Attorney and said defendant being present in her own proper person. ’ ’ The record does not affirmatively say that she was represented by counsel. The fact that the record recites that “she was present in her own proper person” does not necessarily mean that she was not represented by counsel. In the case of People v. Parcora, 358 Ill. 448, the Supreme Court said (451):

‘ ‘ The court in the trial of criminal cases is bound to see that counsel is provided, when requested, for defendants unable to procure such assistance. It is a matter of common knowledge that in a court such as the municipal court of Chicago hundreds of cases are heard without the intervention of counsel. In the absence of a sufficient showing to the contrary, this court must presume that the judge hearing this case in the municipal court did not deny a request for the services of counsel.”

It is not contended that the defendant requested counsel or that her request was refused. Applying the quoted language of the Supreme Court in the Parcora case, we conclude that the point urged by defendant is without merit.

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

Judgment affirmed.

Hebel and Kiley, JJ., concur.


text:
    Reconstruction Finance Corporation, Appellee, v. Edward B. Lucius et al., Defendants. Roland C. Foster and Eli A. Rysdon, Appellants.
    Gen. No. 42,528.

      Opinion filed June 30, 1943.
    Melvin F. Abrahamson, of Naperville, and Lucius, Buehler & Lucius, of Chicago, for certain appellant; Albert E. Lucius and Ralph F. Trenchard, both of Chicago, of counsel.
    Tinsman, Blocki & Heeren, of Chicago, for certain other appellant.
    Lee Walker, M. O. Hoel and R. J. Thompson, all of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court. .

In a complaint filed in the circuit court of Cook county on December 5, 1938 by the Reconstruction Finance Corporation against Edward B. Lucius and Rollin C. Foster, plaintiff alleged that it was the legal holder, for value, of six demand collateral notes executed by Charles E. Fuller, as trustee, payable to the Central Trust Company of Illinois, the notes bearing various dates from October 15, 1930 to April 21,1931; that they were indorsed in blank and held by plaintiff; that the maker, the two defendants and E. A. Eysdon and A. E. Floreen entered into an agreement dated October 10, 1930, a copy of which was attached to the complaint as an exhibit, and that the notes were given by the maker pursuant- to the terms of the agreement. An amendment was filed to the complaint, setting up that on July 25, 1931 the Central Trust Company of Illinois consolidated with the Chicago Trust Company to form the Central Eepublic Bank and Trust Company, and that the consolidated bank became vested with and continued to hold the notes until they were transferred to the plaintiff. By leave of court, plaintiff made Eli A. Eysdon an additional party defendant. By stipulation the cause was dismissed as to Edward B. Lucius. ' Eoland C. Foster filed an answer and an amended answer wherein he denied that plaintiff was the legal holder for value of the notes; that it was a holder in due course; that plaintiff paid any consideration for the notes or gave anything of value therefor either to defendants or to the payee; that defendant was liable to plaintiff upon the notes by reason of insufficiency of the allegations of the complaint; and asserted that plaintiff did not come into possession of the notes until more than a year after they had been executed; that plaintiff at the time it agreed with the payee to accept the notes neither knew nor relied upon the agreement of October 10, 1930, but that the notes were considered and accepted at their face value as the notes of Charles E. Fuller upon his credit and reliability and not as the notes of defendant; that liability, if any, of the defendant, was barred under the statute of limitations on the ground that the cause of action accrued more than five years before the commencement of the suit. The answer of this defendant also denied liability for the reason that Adolph E. Floreen, one of the parties to the agreement, was at that time vice president of the Central Trust Company of Illinois, and that the loans made by the Central Trust Company of Illinois were never approved by the board of directors of that bank, contrary to the provisions of section 10 of the Banking Act (sec. 10, ch. 16½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 10.10]); that the loans were unlawful, illegal and void, and that the Central Trust Company of Illinois, plaintiff’s assignor, participated in transactions that were unlawful, illegal and void. In a reply plaintiff alleged that the notes did not come into its possession until June 27, 1932, more than a year after their execution; that at the time of the execution and delivery of the first of the notes a copy of the agreement was delivered to the Central Trust Company of Illinois, which company knew and understood that Charles E. Fuller, the maker of the notes, was not to be liable for the full amount of the notes, but that the parties to the agreement were' each to be liable for one fifth upon said notes in accordance with the provisions and terms of the agreement; and that the notes were transferred and delivered to plaintiff on or about June 27, 1932. The reply did not state when the copy of the agreement was delivered to plaintiff, but stated that it has in its possession an executed copy thereof. The reply further denied that the action was barred by the statute of limitations; admitted that Adolph E. Floreen was at the time of the execution of the notes and delivery thereof to the Central Trust Company of Illinois, a vice president of that bank; admitted that no application for the loans by the baiik was submitted to or approved by the board of directors of that bank prior to the making of the loan evidenced by the notes; and denied that the loans were unlawful, illegal and void. Plaintiff moved for the entry of a summary judgment, attaching to its motion affidavits; the purport of which was that plaintiff lent to the Central Trust Company of Illinois $90,000,000; that a considerable portion thereof then remained due and owing; that to secure the indebtedness the Central Trust Company of Illinois indorsed, pledged and delivered to plaintiff the notes described in the complaint; that plaintiff was then the holder of the notes as pledgee of the Central Trust Company of Illinois; and that the agreement attached to the complaint was also delivered to the Central Trust Company of Illinois. It is not stated in the affidavits when the agreement was delivered, and it is not specifically stated that it was delivered with the notes. These affidavits were made by B. A. Mattingly, who, at the time of the making of the affidavits, was an employee of plaintiff, and W. A. Sills, who was assistant vice president of the Central Trust Company of Illinois during the time the loans were made. An exhibit attached to the affidavit of W. A. Sills purports to be part of the files and an original record of the Central Trust Company of Illinois entitled, “Information Sheet,” containing certain information relative to the loans evidenced by the six notes sued upon. On this sheet, dated October 18, 1930, appears the following: “This is the transaction of a syndicate, the members of which have agreed to buy as many as 100 shares of the stock of the Commonwealth Trust and Savings Bank at 175 a share, if that much stock is offered. (See syndicate agreement with collateral).” Under date of January 3,1931 appears the following: “New loan $1,500, 5%%. This is the obligation of a syndicate formed to protect the market on Commonwealth Trust & Savings Bank stock. Demand.” There are four other similar entries. To the motion for summary judgment the defendant filed an affidavit of merits substantially as in his amended answer. He attached to his affidavit certain exhibits in the form of letters from a representative of the Central Trust Company of Illinois and later of the attorneys for that bank, seeking to collect from him (Fuller) and later from Foster upon the agreement of October 10, 1930. Defendants assert this indicates that at the time such loans were written, approximately two years after the notes were delivered to plaintiff, the syndicate agreement was in the possession and control of the Central Republic Bank and Trust Company. Mr. Foster also filed a motion to dismiss the action 'pursuant to Section 48 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.048], for the reason that it appeared from the reply of plaintiff and other pleadings that plaintiff must offer extrinsic parol evidence to show that plaintiff knew of and relied upon the syndicate agreement at the time such consideration, if any, as it paid, was paid for the notes; that Fuller’s actions were within the scope of his authority as set forth in the agreement as to quantities of stock purchased and amounts paid therefor, etc.; that plaintiff comes within a class entitled to claim that the syndicate agreement was a contract made for its benefit; and that the cause of action alleged did not arise out of a contract in writing to which the ten-year statute" of limitations was applicable, but arose, if at all, by reason of an implied contract barred by the five-year statute of limitations. The court entered an order that all pleadings, motions and affidavits filed on behalf of plaintiff and defendant Foster should stand as such as to the defendant Rysdon. The court allowed plaintiff’s motion and entered a separate judgment against each of the defendants for $2,154.33 and costs. The court also denied defendants’ motions to dismiss the action, made pursuant to section 48 of the Civil Practice Act. This appeal followed.

The syndicate agreement of October 10, 1930 reads:

“That, Whereas, the purchasers desire to form a syndicate for the purpose of purchasing certain shares of the capital stock of the Commonwealth Trust & Savings Bank, a hanking corporation of Illinois, not, however, exceeding one hundred (100) shares and at a price not exceeding One Hundred Seventy-Five Dollars ($175) per share, and to that end desire that such stock as may be purchased be taken in the name of Charles R. Fuller as Trustee, and that, he as Trustee, shall have, power to borrow upon pledge of such stock as collateral. Now, Therefore, in consideration of the premises and of the covenants and agreements hereinafter made, it is'agreed as follows: 1. The Trustee shall purchase from time to time as available, not more than a total of One Hundred (100) shares of such stock and shall pay therefor not more than One Hundred Seventy-Five Dollars ($175) per share. The Trustee is authorized to borrow against said stock such amount as may be loaned thereon and to pledge the stock therefor, and the Purchasers hereto agree to furnish, on request of the Trustee, their pro rata share of such additional sum as may be needed between the amount of the purchase price and the amount borrowed thereon to pay for such stock. The Trustee shall thereupon give receipts to each of the Purchasers evidencing the amount paid by such purchaser and the quantity of such stock purchased. 2. The parties hereto agree with each other and with the Trustee, for their own and the Trustee’s benefit and for the benefit of any bank loaning funds upon such stock as security, that the signature of the Trustee upon any note for such borrowing, is hereby authorized by them and that they authorize such borrowing and agree to be bound upon such note as if .they and each of them had individually signed said note, but to the extent only of such total borrowing as their individual interest bears, namely, one-fifth thereof. 3. The parties hereto agree that an executed copy of this agreement may be left with such bank as the Trustee may borrow from, in the manner aforesaid, for the purpose of indicating to said bank tbe authority of said Trustee to borrow within the limits and upon the basis of liability hereinabove set forth. 4. It is agreed that such shares of stock, or any part thereof, shall be sold at such times and in such amounts and at such prices as the majority of the purchasers shall from time to time hereafter agree, and that the proceeds realized upon such sale shall, after pro rata liquidation of any note obligation, be distributed among the purchasers. 5. The parties hereto further agree to bear their pro rata expense of any interest which may become due upon any note or notes given by such Trustee pursuant hereto. 6. This agreement shall .continue for not longer than the term of two years, at which time if such stock shall not have been fully sold and any obligations thereon not fully liquidated, such stockholdings that the syndicate may have shall be liquidated at such prices as a majority of the syndicate shall agree, and the proceeds after payment of any indebtedness upon any outstanding note, shall be divided pro rata among the purchasers. 7. The Trustee shall vote any such stock standing in his name as Trustee at. any stockholders ’ meeting in accordance with the written instruction previously given of a majority of the purchasers. 8. The Trustee agrees upon request of any of the purchasers, to give to such purchaser a statement showing the quantity of stock purchased, the date when purchased, the amount paid therefor and the amount borrowed thereon and such other data as may fully set forth the holdings of the Trustee for the benefit of the purchasers.”

It will be observed that the agreement authorized the trustee, Fuller, to borrow against the stock such amount as might be loaned thereon and to pledge the stock therefor, and for the benefit of any bank loaning the funds upon the stock as security that the signature of Fuller upon any note for such borrowing was authorized. The members of the syndicate agreed to be bound upon any note so given to a bank by Fuller “as if they and each of them had individually signed said note,” but to the extent only of one fifth of such total borrowing. The parties agreed that an executed copy of the agreement might be left with any such bank for the purpose of indicating to the bank the authority of the trustee to borrow within the limits and upon the basis of liability set forth.

The first criticism leveled at the judgment is that plaintiff did not make out a case on the pleadings; and that the court misconceived the nature of plaintiff’s cause of action which although asserted in the form of a negotiable chose in action, the relief sought was based on a non-negotiable chose in action. Defendants point out that the first paragraph of section 31 of the Civil Practice Act (sec. 155, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.031]) provides that the plaintiff must state a cause of action. Defendants assert that their liability, if any, must be predicated upon the syndicate agreement; that under this agreement it became essential to aver and prove not only that the loans were made but that they were made for the purpose stated in the agreement and that the proceeds were used by Fuller in the purchase of stock at not more than the price stipulated and for the number of shares contemplated; that no such averments appear in the complaint or the affidavits; that it must appear from the complaint that after the execution and delivery of the syndicate agreement Fuller, pursuant to the authority given him, did, in fact, in addition to borrowing the funds represented by the notes, use such funds in the manner provided in the agreement. Defendants state that an analysis of the complaint and the affidavits in support- of the motion for summary judgment shows that no claim was made that the right of action arose out of the execution and delivery of the agreement and the performance of the conditions of the agreement, or that plaintiff claimed to be a beneficiary thereunder; that plaintiff’s cause of action is solely upon the notes and that since the defendants are not the makers of the notes they are not liable thereon under the provisions of section 18 of the Negotiable Instruments Act (sec. 38, ch. 98, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 89.038]) that “no person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided.” Defendants maintain that it is apparent that the exception intended was to cover those cases where the signature of the party had been made by a duly authorized agent, and calls attention to section 19 of the Negotiable Instruments Act (sec. 39, ch. 98, Ill. Rev. Stat. 1941 [Jones Ill. Stats Ann. 89.039]) that “the signature of any party may be made by a duly authorized agent.” Defendants point out that in the instant case the notes do not bear the signatures of the defendants, are not signed by the defendants as required by section 18, nor do they bear the signatures of such persons by a duly authorized agent, as provided in section 19. Defendants comment on the fact that plaintiff made no attempt to comply with section 22 of the Civil Practice Act (sec. 146, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.022]) which requires the assignee of a non-negotiable chose in fiction to aver in his pleadings how and when he acquired his chose in action and that such averments be under oath. Defendants declare that from the circumstances of plaintiff’s noncompliance with section 22 of the Civil Practice Act, it appears that plaintiff elected to pursue a cause of action based on a negotiable chose in action, and suggest that if the syndicate agreement is coupled with the notes to form, as a basis for a cause of action, a single integrated agreement upon a breach of which plaintiff relies for recovery, the negotiability is destroyed, and that hence the cause of action, if any there be, is on a non-negotiable chose in action, and that in such case the pleadings are bad for lack of compliance with section 22 of the Civil Practice Act. Defendants urge that the notes and the syndicate agreement combined as the basis for a canse of action, did not constitute a chose in-action on a negotiable instrument, but on the contrary consisted of a non-negotiable chose in action, and that plaintiff adopted the form of action for a negotiable chose in action, without complying with section 22 of the Civil Practice Act. Defendants refer us to the definition of what constitutes a negotiable instrument under sections 1 and 2 of the Negotiable Instruments Law (secs. 21 and 22, ch. 98, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 89.021 and 89.022]) and state that the six notes, coupled with the syndicate agreement, could not be held to constitute an unconditional promise to pay money.

In reply to these arguments plaintiff states that-the action was not brought upon the syndicate agreement, but upon the six notes executed by Fuller, as trustee, and that the syndicate agreement was brought into the case as evidential matter to establish the identity of the parties who were liable for payment of the notes. We agree with plaintiff that section 22 of the Civil Practice Act is not applicable as plaintiff is not suing as the assignee and owner of a non-negotiable chose in action, but as the holder of the notes. (Ryan v. Klafter, 309 Ill. App. 136 (Abst.) We also agree with the contention of plaintiff that under the Negotiable Instruments Act, if a note is signed by one merely “as trustee ” it is competent to prove that it was the understanding of the parties that the one signing as trustee was not to be liable, but that other persons were to be liable and recovery will be allowed not against the trustee but against such other persons. Tampa Investment & Securities Co. v. Taylor, 272 Ill. App. 541; In re Estate of Maloney, 296 Ill. App. 179. It is undisputed that Charles Fuller, as trustee, had authority to borrow the money from the lending bank and had authority to sign the note. The syndicate agreement contemplated that a copy of the agreement might be left with the bank to evidence Fuller’s authority by his signature to bind all the parties to the syndicate. It is clear from the cases that if the bank (plaintiff’s transferor) had attempted to enforce collection of the notes against Fuller, it would by reason of the syndicate agreement have been defeated to the extent of the excess over his personal liability. It is equally clear that the lending bank could have recovered from the individuals who signed the syndicate agreement to the extent of one fifth from each. Since the notes were indorsed and delivered to the plaintiff after maturity the plaintiff stands in exactly the same position with respect to the defendants as the transferor and the rights accruing from the syndicate agreement pass with and as an incident to the notes. We also agree with plaintiff that it was not necessary to allege and prove that it had knowledge and relied upon the syndicate agreement when it took the notes as collateral security. As stated in the Ryan v. Klafter case, the law is well settled that the assignment of a note- carries with it not only all security relating thereto, but also all rights and remedies pertaining thereto. Answering defendants’ statement that after the pledge of the notes to plaintiff by the bank, defendants received letters from the bank’s attorneys demanding payment, plaintiff correctly concludes that a pledgee may permit the pledgor to collect pledged assets without affecting the validity of the pledge as against the obligor.

The contention of defendants that it was necessary for plaintiff to aver and prove that the loans were made to Fuller as trustee to enable him to purchase not more than 100 shares of stock of the Commonwealth Trust and Savings Bank at' not more than $175 per share and that the proceeds of the loan were so used by Fuller, is not valid. This action is not brought by a party to the syndicate agreement who is seeking to enforce it. It is an action upon notes given to a bank upon which the defendants agreed to be bound. The provision' of the agreement' with respect to the number of shares to be purchased and the amount to be paid therefor were for the government of the trustee in relation to the syndicate members rather than for the government of the bank in relation to the trustee. This is true not only from the language of the agreement but also because it would never be possible for the bank to assure itself that the trustee had not violated the limits imposed and that no amount of inquiry by the bank on this subject would be adequate since the trustee might conceivably have purchased more than the number of shares permitted and might have borrowed from other banks on the stock, which other banks might likewise be ignorant of the trustee’s violation of his duties. It will be observed that there is nothing’ in the record to indicate that the trustee in fact purchased more than 100 shares or paid more than $175 a share. The notes sued on describe as collateral certain shares of stock, but the aggregate of all the shares described in the notes is 60 shares. No averment of noncompliance with the agreement is to be found in defendants’ answer, or in their affidavits. As stated, had defendants so pleaded, we are of the opinion that such a defense would not be tenable.

The second point presented by defendants is that the court erred in disregarding their plea of the five-year statute of limitations. Defendants point out that the six notes sued upon contain no reference to the syndicate agreement or to the defendants, and that the syndicate agreement does not mention or describe the six notes or the Central Trust Company of Illinois or its successors. They assert that the allegation that the notes were given pursuant to the agreement is not an averment of fact, but' a mere conclusion of the pleader. Defendants contend that oral testimony was necessary to connect the plaintiff or its assignor with both the notes and the agreement and to show that the notes and the agreement were interrelated parts of the cause of action asserted. Defendants declare that it is apparent that plaintiff, in its affidavits in support of its motion for summary judgment, attempted to supply the missing elements in the contract ; that affiant, W. A. Sills, averred that if he were a witness he could competently testify that the syndicate agreement was taken by the Central Trust Company of Illinois at the time the first of the notes was made, that the agreement remained in the possession of said bank and was in its possession at the time of the making of the loans evidenced by the other five notes; and that affiant, who was assistant vice president of the bank during the time the notes were made, knew and understood that Fuller was not to be liable for the full face amount of the notes, but that defendants were to be liable upon the notes each to the extent of one fifth thereof in accordance with the agreement. Defendants submit that such testimony contained in plaintiff’s affidavits in support of the motion for summary judgment constituted intrinsic parol evidence, offered to explain the terms of the contract and to identify the parties and their relation to the contract, and that the fact that the contract as declared upon by plaintiff as a cause of action required such explanation brings such contract within the purview of Railway Passenger & Freight Conductors’ Mut. Aid & Ben. Ass’n v. Loomis, 142 Ill. 560, and Mowatt v. City of Chicago, 292 Ill. 578, and that the action thereon should have been barred by the five-year statute of limitations. (Sec. 16, ch. 83, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 107.275].) Defendants also maintain that the agreement was not part of the contract sued upon but at most constituted evidence of an implied contract on the part of the defendants to pay the notes; that the position of plaintiff is that the notes constituted a contract under which it sought to recover, and that the liability of defendants to pay the notes arose by virtue of their having entered into the agreement; that this constitutes an averment of an evidentiary conclusion; that by merely declaring on the notes and averring a liability upon defendants by reason of the syndicate agreement plaintiff could not thereby merge the syndicate agreement into the notes as an integral part of the contract forming its cause of action, citing Knight v. St. Louis, I. M. & S. Ry. Co., 141 Ill. 110. As we have held that the instant suit is based on the notes, the ten-year statute of limitations is applicable. Actions on promissory notes, written contracts or other evidence of indebtedness in writing may be commenced within ten years after the cause of action accrued. (Sec. 17, ch. 83, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 107.276].) As plaintiff sued the holder of promissory notes and brought its action within ten years after the cause of action accrued, it was not barred by the statute of limitations. "We have read the cases cited by the respective parties and are of the opinion that the cases of Jones v. Supreme Lodge Knights of Honor, 236 Ill. 113, and Mowatt v. City of Chicago, 292 Ill. 578, are not applicable to the factual situation before us. Our view is that whether the instant cause of action be regarded as founded on the notes or the syndicate agreement, or the notes and the syndicate agreement, it is not barred by the five-year statute of limitations. As to defendants’ criticism that the allegation that the notes sued upon were notes given pursuant to the agreement is not an averment of fact but a conclusion of the pleader, we observe that many allegations commonly made and yet accepted as proper pleadings are stated in the form of conclusions. The concepts “ownership,” “possession,” “promised,” “committed an assault,” ‘‘negligently,” “fraudulently,” “did perform said promise,” “holder” etc., are deemed to be ultimate facts and are pleadable in the above language, yet elements of legal conclusions are involved in every one of them. What is law, whát are facts and what is evidence for pleading purposes, can be determined only by a court’s consideration of the practical task of administering a particular litigation. We are satisfied that the allegation that the notes sued upon were notes given pursuant to the agreement, although in the nature of a conclusion of fact was proper pleading. From the record before us there is no doubt that the notes sued upon were given pursuant to the syndicate agreement.

Defendants next allege that the loans made to Fuller and evidenced by the notes were unlawful under the provisions of section 10 of the Banking Act. It is alleged in the answer and admitted by the reply of plaintiff that Floreen, one of the parties to the agreement, was at the time of the execution of the notes and delivery thereof to the Central Trust Company of Illinois, a vice president of that bank, and that the loans were not submitted to or approved by the board of directors of that bank prior to the making of the loans evidenced by the notes. Defendants rely on the last paragraph of section 10 of the Banking Act (sec. 10, ch. 16½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 10.10]) as follows:

“It shall not be lawful for any bank to loan to its president, or to any of its vice-presidents or its salaried officers or employees, or to corporations of firms controlled by them, or in the management of which any of them are actively engaged, until an application for such loan shall have been first approved, both as to security and amount, by the board of directors.”

Plaintiff calls our attention to the paragraph immediately preceding the above language in the same section:

“Every such loan made in violation of the provisions hereof shall be dne and payable according to its terms and the remedy for the recovery of any money loaned in violation of the provisions hereof or for the enforcement of any agreement collateral or otherwise made in connection with any snch loan shall not be held to be impaired, affected or prohibited by reason of such violation, but such remedy shall exist notwithstanding the same. But every director, or officer, of any such association, who shall violate, or participate in, or assent to such violation, or who shall permit any of the officers, agents or servants of the association to violate the provisions hereof, shall be held liable in his personal and individual capacity for all damages which the association, its shareholders or any other person shall have sustained in consequence of such violation.”

This statute .plainly provides that even if a loan be made in violation thereof the right to recover shall not be impaired, affected or prohibited by reason of such violation, but such remedy shall exist notwithstanding the same. In Nelson & Co. v. Leiter, 190 Ill. 414, the Supreme Court stated that the purpose of the enactment is to protect the interests of depositors and stockholders. At that time there was no provision preserving the right of action in the bank to recover where the statute was violated. Nevertheless, the court said (24):

‘ ‘ There is no express declaration in the section that loans in excess of the statutory limitation shall not be collectible, and to so construe the section would be to defeat the very purpose which prompted the adoption of the section.”

The Supreme Court of the United States adheres to this rule, Union Cold Mining Co. v. Rocky Mountain Nat. Bank, 96 U. S. 640. We conclude that the trial court was right in rejecting defendants’ contention that the asserted violation of section 10 of the Banking Act constituted a defense to the action.

Defendants argue that the syndicate agreement shows that it was executed for the purpose of artificially influencing prices, that its purpose was against the public interest, that it was contrary to public policy and therefore void. They state that it is apparent that the Central Trust Company of Illinois knew that the stock was purchased for the purpose of protecting the market on Commonwealth Trust and Savings Bank stock from the time the original loan was made; that the purpose of the arrangement indicated by the syndicate agreement, together with the deposit thereof with the bank, and the memorandum of the intent thereof as shown from the records of the bank, was to enter into an agreement for artificially influencing the price of the bank stock; that this purpose was against the public interest and therefore contrary to public policy and void. The payee was not a party to the agreement and defendants made no effort to show that it (the payee) was in any way interested in an illegal manipulation of the market. The public policy of Illinois, as declared by our Supreme Court, is that banking laws should be construed with the object of protecting depositors and the public. Central Republic Trust Co. v. Evans, 378 Ill. 58. The record in this case does not show an intent of unlawful manipulation of the market in the Commonwealth Trust and Savings Bank stock. Even if the record did so show the public policy of this State would not permit defendants to prevail in such a defense.

Finally, defendants insist that the court erred in granting the motion for summary judgment; that such procedure searches the record, as does a demurrer; that it is a harsh remedy in the nature of an inquisition as to whether there is an issue of fact to be tried; that it is to be construed strictly against plaintiff and liberally in favor of tbe defendants; and that if, as in tbe instant case, tbe defense is arguable, apparent and made in good faitb, it must be denied and a trial bad not upon tbe affidavits but upon tbe issues. Tbe court determined that there were no factual issues to be decided. We agree with plaintiff that tbe record does not disclose a single issue of fact. It presented purely questions of láw. We are convinced that tbe court ruled correctly on tbe points presented and tbe judgment of tbe circuit court of Cook county is affirmed.

Judgment affirmed.

Hebel and Kiley, JJ., concur.


text:
    Anne B. Anderson, Now Known as Anne B. Pinckard, Appellant, v. George W. Anderson, Appellee.
    Gen. No. 42,592.

      Opinion filed June 30, 1943.
    Peden, Ryan & Andreas, of Chicago, for appellant; Gerald Ryan, J. Homer Andreas and William E. Raddatz, all of Chicago, of counsel.
    Cohon & Goldstein, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On April 26, 1924 Anne B. Anderson married George W. Anderson. They lived and cohabited as husband and wife until February 15, 1928. One child, George W. Anderson, Jr., was born of the marriage. On January 31, 1929 Mrs. Anderson filed a bill for divorce in the superior court of Cook county on the ground that her husband on July 17, 1928 was convicted of the crime of embezzlement and sentenced to imprisonment in the Industrial Reformatory at Chillicothe, Ohio. Substitute service was made on the defendant by publication and delivering to him a copy of the bill of complaint. On May 1, 1929 a decree was entered dissolving the bonds of matrimony between them. The decree did not mention the child of the parties. On May 28, 1941 plaintiff filed a supplemental petition, alleging that the divorce decree made no provision for the support of the child; that at the time of the decree and since then she continued to have the care and custody of the child; that defendant made no provision for and did not support the child; that after the entry of the decree she married Charles B. Pinckard; that on March 31,1930 a decree was entered in the county court of Cook county for the adoption by petitioner and ber second husband of the child, George W. Anderson,' Jr., whose name was therein changed to Frederick B. Pinckard; that thereafter plaintiff and her husband and child moved to Los Angeles, California ; that the child was 15 years of age at the time of the filing of the petition, May 28, 1941; that she is the mother of a child by her second marriage; that she “is not being regularly supported by her present husband and is compelled to work as a department store clerk and earns from sixteen to eighteen dollars a week, which is not sufficient to support herself, her minor child by her second marriage and the said George W. Anderson, Jr., also known as Frederick B. Pinckard”; that Frederick B. Pinckard was 15 years old; that he is in school and being cared for by petitioner in her home; that she “does not have funds sufficient to properly support and care for the said George W. Anderson, Jr., also known as Frederick B. Pinckard; that Frederick B. Pinckard, while attending school is endeavoring to earn money running errands after his school work to earn sufficient money to supplement the scanty income of your.petitioner, but the said child is unable to earn sufficient to so supplement the income of your petitioner and is greatly undernourished, weak and run down. The present economic condition of your petitioner is such that the said minor child of petitioner and the said George W. Anderson, Jr., also known as Frederick B. Pinckard, is undernourished and has great difficulty in keeping up his school work and completing his education; that said George W. Anderson should provide for the support of the said George W. Anderson, Jr., also known as Frederick B. Pinckard, he being the father of the said George W. Anderson, Jr., also known as Frederick B. Pinckard; that said George W. Anderson returned to the State of Illinois in the year 1935 or thereabout and has been steadily employed; that said George W. Anderson has remarried but has no children by his second marriage. The said George "W. Anderson is actively engaged in business and is possessed of a large estate consisting of securities of various kinds and character. He is employed as a salesman for several manufacturing and distributing companies and earns an income in excess of $7,500 per year. The said George W. Anderson is a well educated man and maintains a large and expensive household and is active socially and is well able to support and provide for the maintenance of the said minor child' of petitioner and the said George W. Anderson and is liable under the law to do so. Your petitioner has made repeated requests of the said George W. Anderson that he make some proper and suitable provision for the support and maintenance of the said child of the parties, but the said George W. Anderson refuses so to do.” The petition prayed that the court determine and order defendant to pay a reasonable sum for the support and maintenance of the minor child, and a further sum as attorney’s fees. On June 25, 1941, defendant answered, denying that he “never made provision for the support” of the child. He alleged that the child was 16 years of age, denied that plaintiff was not being regularly supported by her husband, denied that she earned only sixteen to eighteen dollars a week; denied that her earnings were insufficient to support herself and her child; denied that she did not have sufficient funds to properly support and care for the minor child; denied that the child was unable to earn sufficient to supplement the income of plaintiff, or that the child was greatly undernourished, weak and run down; denied that the child had great difficulty in keeping up his school work; denied that he, defendant, should provide for the support of the child; denied that he, defendant, had been steadily employed, or that he was engaged in business, or possessed a large estate; denied that he earned in excess of $7,500 per year, or that he maintained a large and expensive household, or that he was active socially, or that he was well able to provide for the maintenance of the child, or that plaintiff made repeated requests that he make suitable provision for the support and maintenance of the child, or that plaintiff was without means to prosecute her petition, or that she was entitled to a reasonable fee for her attorney. Defendant further represented that the minor was adopted by plaintiff and her husband while defendant was in a penal institution; that the child bears the name of plaintiff’s present husband rather than of defendant; that plaintiff and her husband took the child out of the jurisdiction of the court and reside with the child in California, thereby depriving defendant of any possibility of association with or opportunity to cultivate the child from the time the child was 4 years of age; that plaintiff and her husband assured the court at the time the adoption decree was entered that they would assume the burden of support and maintenance of the child, which assurance was one of the controlling factors in causing the court to enter the decree; and that plaintiff and her husband are well able to support and maintain the child. The case was heard by a chancellor in July 1941. The attorneys for the respective parties submitted briefs, but no ruling was made by that chancellor. The ease came on for hearing before another chancellor on November 11, 1942. No testimony was heard. The court read the complaint and the answer. The attorney for the plaintiff informed the court that plaintiff’s petition alleged that the adoptive father was not supporting and maintaining the child, but that the petition did not allege that the adoptive father was unable to perform this obligation. He also informed the court that the defendant was earning $4,500 a year. Defendant’s attorney stated that the facts of the case were set out in the petition and that he was satisfied to have the court rule on the case without the submission of any evidence. The attorneys argued the law applicable to the facts as stated in the petition. The court then took the briefs which had been submitted to the previous chancellor 18 months previously. At a further hearing on November 24, 1942 he announced that after having studied the briefs he was of the opinion that the prayer of the petition should be denied and that the petition should be dismissed for want of equity.

On December 11,. 1942 the court entered an order dismissing the petition for want of equity. The order, in part, reads:

“The petitioner has a child by her second marriage, who is a minor. Petitioner is not being regularly supported by her present husband and is employed as a department store clerk and earns from sixteen to eighteen dollars a week. Said George W. Anderson, Jr., also known as Frederick B. Pinckard, being 16% years of age and being 15 years of age at the time petition was filed herein, is in attendance at school and is being taken care of by the petitioner in her home. The said George W. Anderson, Jr., also known as Frederick B. Pinckard, while attending school, is earning money running errands after school work. Said George W. Anderson returned to the State of Illinois in the year 1933 and has been steadily employed. Since the filing of the supplemental petition herein, he has left Chicago again and is now a resident of Pittsburgh, Pennsylvania. Defendant has remarried, is employed as a salesman for a manufacturing and distributing company and earns an income of approximately $4500.00 per year. He has not had the privilege of visiting the minor child of the parties hereto and has never seen the minor child since the divorce. No showing has been made that petitioner has made any effort to secure support for the minor child from her present husband, who is the father by adoption. No showing has been made as to what the earnings of the 16% year old minor child are in work performed before and after school, and that no real necessity has arisen for the defendant to support the minor child.”

Plaintiff appeals.

Before considering the law applicable to this case, it will be noted that the parties stipulated that the petition be taken as true. The petition recites that plaintiff “is not being regularly supported by her second husband,” that she is a clerk in a department store earning from sixteen to eighteen dollars a week “which is not sufficient to support herself and her minor child by her second marriage” and the minor child of plaintiff and defendant. The petition states further that plaintiff does not have funds sufficient to support the child; that the child runs errands in an endeavor to supplement plaintiff’s income, “but is unable to earn enough”; that he is “greatly undernourished, weak and run down and has great difficulty keeping up his school work.” The court found that at the time the decree was entered the minor child was 16% years old. The record does not show the birthday of the child. As the decree was entered on December 11, 1942 we presume that the child is now 17 years of age. The petition alleges that the adoptive father was not supporting the child, but does not allege, and the attorney for plaintiff stated at the hearing, that the adoptive father was unable to support the child. The supplemental petition alleges that plaintiff is not being regularly supported by her second husband. "We are left to speculate as to what is meant by the statement that she is “not being regularly supported.” A person could be adequately supported although not regularly supported. The question presented by the petition in any event is as to whether the minor child is being supported, not as to whether plaintiff is being supported. The petition is silent as to the occupation of Mr. Pinckard, the second husband and adoptive father, and as to his resources. We are asked to infer that because plaintiff works as a clerk in a department store receiving wages of sixteen to eighteen dollars a week, the adoptive parents do not have sufficient income to adequately support and maintain the child. We are asked to draw the same inference from the allegation that she does not have sufficient funds to support and maintain the minor child. Even though plaintiff does not have sufficient funds to support the child, the adoptive father could have a sufficient income to support the child. The statement that the minor child runs errands in an endeavor to earn money to supplement plaintiff’s income but is unable to earn enough, also leaves out of account the income of Mr. Pinckard. The fact that the minor, child is “greatly undernourished, weak and run down, and has great difficulty in keeping up his school work” would not necessarily be caused by lack of funds. It is common knowledge that persons in comfortable circumstances become weak and run down. Many children who are well provided for have difficulty in keeping up their school work. At the time of the hearings the attorneys for the respective parties apparently believed that the statement of facts contained in the petition was a sufficient presentation, and that by applying the law thereto a proper decision could be made. The position of the defendant in this court, however, is that the statement in the petition does not make out a case for the plaintiff. It is unfortunate that the facts as to the circumstances of the adoptive parents, particularly the resources and income of Mr. Pinckard, were not presented. It would be desirable also to have information as to the kind of a home in which the child lives, his physical condition and the manner in which he has lived within the last few years, also the physical condition of the adoptive parents. While the parties speak of the facts set out in the petition, as a matter of fact the petition consists of a statement of conclusions as to the matters of importance on this appeal. We feel, however, that a child’s welfare is involved and that the case should not be disposed of without the court going fully into the merits. Under the position taken by the defendant in this court, the proper procedure would be to have moved to dismiss or to strike the petition on the ground that it was insufficient on which to base relief rather than by stipulating on the facts of the case as set forth in the petition. Where a suit is instituted in a court of chancery relative to the person or property of an infant he is treated as the ward of the court and under its special protection. Swiney v. Womack, 343 Ill. 278, 287.

In considering this case, it is well to recall the pertinent language of our Supreme. Court in Kelley v. Kelley, 317 Ill. 104,110:

“Since the children of divorced parents are often exposed to the mutual animosities and jealousies of their parents and the happiness of the children and their usefulness as citizens are thereby endangered, it is the established policy of the law of this State to regard such children as wards of the court. The nurture and proper training of the children of divorced parents being matters of vital interest to the State as well as to the children themselves, the legislature has provided that the court granting a divorce shall have full and continuing jurisdiction, during the minority of such children, to make from time to time such orders with respect to their care, custody and support as reason and justice shall require. While the marriage relation may be dissolved and the marital rights and duties thereby brought to an end, the relation of parent and child cannot be destroyed. The obligation of the father to support his children begins when the child is born and continues during the minority of the child. The obligation of the father to support his minor child is not affected by the decree granting a divorce, nor by a decree granting the care and custody of his child to Ms wife or some dther suitable person. (Plaster v. Plaster, 47 Ill. 290.) His children are of his blood. It is not their fault that their parents have been divorced. It is their right to-be given care by those who brought them into the world until they are old enough to take care of themselves. We entertain no doubt that the court that granted a decree in this case awarding the custody of the child to the mother had authority, upon the presentation of a petition for the purpose, to issue a citation requiring the father to appear and show cause, if any he had, why he should not be required to assist in supporting his minor child. This conclusion finds support in many well considered cases from other jurisdictions. McFarlane v. McFarlane, 43 Ore. 477; 73 Pac. 203; Tobin v. Tobin (Ind.) 64 N. E. 624; Spain v. Spain, 177 Iowa 249, 158 N. W. 529; Marks v. Marks, 22 S. D. 453, 118 N. W. 694; Chambers v Chambers, 75 Neb. 850, 106 N. W. 993; Renner v. Renner, 127 Wis. 371, 106 N. W. 846; Miles v. Miles, 65 Kan. 676, 70 Pac. 631.”

While the Kelley case did not involve an adoption, it sets forth in clear language the obligations of parents, particularly fathers, to their children. The special jurisdiction of chancery over a child’s well-being is not governed by technical rules. It is the duty of the chancellor to protect the child as a ward of the court.

The adoption of one person by another is the creation of an artificial relation between people and is taken from the Roman law, being unknown to the English law. A majority of the States of the Union have enacted statutes of adoption. These statutes are not uniform and the new rights and obligations vary with the jurisdiction. Turning to the Adoption Act of this State, we observe that section 3 (sec. 3, ch. 4, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 19.003]) provides that the decree shall order that from its date “the child shall, to all legal intents and purposes, be the child of the petitioner or petitioners.” Section 8 provides: “The natural parents of a child so adopted shall be deprived, by the decree, of all legal rights, as respects the child, and the child shall be freed from all obligations of maintenance and obedience as respects such parents.” Both parties rely on and discuss the case of Dwyer v. Dwyer, 366 Ill. 630. In 1927 Frances Dwyer procured a divorce in the superior court from Thomas L. Dwyer on the grounds of desertion. Their minor child was then about three years of age. By the consent of both parties the child was adopted in the county court of Cook county by the maternal grandparents on the day prior to the entry of the divorce decree, which recites the adoption. Plaintiff waived alimony and the decree made no provision therefor, or for the support of the child. The grandfather died in 1931, insolvent, and in 1933 the grandmother remarried and moved to the State of Texas. The child was thereafter supported by plaintiff. In 1934 she adopted the child in the county court, and later, in the same month, filed a petition in the superior court in the case in which the divorce was granted, seeking an order from Thomas L. Dwyer, the natural father of the child, for support for the child and solicitor’s fees. His answer claimed nonliability because of the adoption proceedings. The court entered an order on January 28, 1935, requiring him to pay $10 a week for the support of the child and $50 solicitor’s fees. He appealed, but the appeal was later dismissed. His petition to vacate the order was denied for want of equity. No appeal was taken from the latter order. .In June, following, the defendant made payment of the amount accrued, under a rule to show cause entered in May, and the rule was dismissed, with an order for $75 solicitor’s fees. In January 1936 plaintiff filed another petition for a rule to show cause, alleging arrears of $80. Defendant’s answer admitted $40 arrearage, but challenged the jurisdiction of the court to enter the order of January 28, 1935. Hpon a hearing, the order adjudging him guilty of contempt was entered, finding the arrearage to be $80, and committing him to jail for not to exceed six months, or until he paid .the amount of the arrearage. Defendant’s contention was that when his child was adopted by others he was by the terms of the Adoption Act relieved of all duties and obligations to thereafter support it. The contention of the defendant was sustained by the Appellate Court, but rejected by the Supreme Court, which, in affirming the judgment of the superior court, said (633):

“The statute does not provide that an adoption relieves the natural parents of their duty to support their offspring. The only express provision of the statute as to the respective rights and duties of natural parents and their children is found in section 8, which deprives the natural parents of all their legal rights in respect to the child, and frees the child from any obligation to maintain .or obey the natural parents. An adoption of a child does not work a complete severance in the relationship between the child and its natural parents. The duty of a parent to support his minor child arises out of the natural relationship, and while that duty may also be imposed upon the adoptive parents by statutory enactment, the natural parent may, if necessity arises, be required to perform that duty. The primary duty of the adoptive parents to support is in derogation of the general law, and it is for that reason that, as to the adopted child, the statute must be strictly construed. (Keegan v. Geraghty, 101 Ill. 26.) The statute is not to be construed as relieving the natural parents from all obligation to support their minor children.”

It will be observed that in the Dwyer case the Supreme Court pointed out that the natural parent may “if necessity arises, be required to perform that duty,” and added that the primary duty of the adoptive parents to support is in derogation of the general law. The Supreme Court used this language deliberately. The primary duty of supporting, caring for and maintaining Frederick B. Pinckard, also known as George W. Anderson, Jr., is on the adoptive parents, Mr. and Mrs. Pinckard. However, the adoption did not relieve the defendant, George W. Anderson, the natural father, from his duty to support his offspring, and “if necessity arises,” he may be required to perform that duty. The question presented is whether the necessity to perform his duty of fatherhood arose. In McNemar v. McNemar, 137 Ill. App. 504, the court said (507):

.“. . . The relation of parent and child is not ended by the adoption, but fostered instead, and since the father is primarily liable for the support and care of his own child, we hold that the natural father cannot recover for the care and support of his child while in his own home and custody, against a parent by adoption, in the absence of an express agreement to pay.”

While the parties did not present the facts to the chancellor so that he could protect the rights of the child, it appears that the mother was required to work as a clerk and that the boy was required to work after school hours • in order to earn sufficient to maintain themselves. It also appears that they were not being regularly supported by Mr. Pinckard. It is conceded that the defendant earns more than $4,500 a year. Regardless of the merits of the dispute between plaintiff and defendant, the child should not. suffer and it was the duty of a court of chancery to protect him. The parties are before our courts and the cause of justice would not he served by telling the child to seek a remedy in California. From the record before us we cannot say that the necessity spoken of in the Dwyer case has arisen so as to require the defendant to carry out his obligation as the father of the boy. In view of the inadequate presentation of the factual situation, we are of the opinion that the order should be reversed to give the chancellor an opportunity to ascertain the facts, thus enabling him to determine whether it is necessary for the defendant to fulfill his obligation of fatherhood. We feel that this should be done as the child is a ward of the court and under its protection. Should an order be entered, it should relate back to the time when the motion therefor-was made. The child should not be prejudiced because of the delay in passing on the dispute. Accordingly, the order of the superior court of Cook county is reversed and the cause remanded for further proceedings in harmony with these views.

Reversed and remanded with directions.

Hebel and Kiley, JJ., concur.