author: Mb. Justice Dibell

text:
    Ætna Life Insurance Company v. Mary S. Sanford.
    1. Life Insurance — Waiver of a Forfeiture for a Failure to Pay Premiums. — It is within the power of a life insurance company to waive a condition of its policy providing that if a premium is not paid when due, the policy shall cease, and determine, and such waiver may be effected by its course of business with the holder of the policy.
    2. Same — No Poiuer to Insist upon Further Action by the Insured After it Has Onee Granted Him an Extension. — After a life insurance company grants an extension of sixty days to a policy holder in which to pay his annual premium, it is powerless to demand astatement from him a month later, that he is still in good health, as a condition to permitting the policy to remain in force during the sixty days.
    Assumpsit, on a policy of life insurance. Appeal from the Circuit Court of Grundy County; the Hon. Harvey M. Trimble, Judge, presiding. Heard in this court at the April term, 1901.
    Affirmed.
    Opinion filed October 8, 1901.
    Statement. — Edward Sanford, an attorney residing at Morris, Illinois, held several policies of insurance upon his life in the JEtna Life Insurance Company, two of which are involved in this case. One of these was Mo. 26071, dated March 7, 1876, for1 $5,00*0, payable to his wife, Mary S. Sanford, the annual premium upon which was $132.10, payable February 10th of each year during the continuance of the policy. It contained provisions that if any premium should not be paid when due the policy should cease and determine, and the company should not be liable to pay the sum insured therein or any part thereof, but that if all premiums had been paid for three years or more, and any subsequent premiums became due and were not paid, a paid-up non-participating policy would be issued in accordance with a table on the back of the policy if the policy in question was returned to the company and a -paid-up policy applied for within twelve months from the time of such default in premium. The other was No. 113514, a paid-up policy for $500, also payable to Mrs. Sanford, upon which was indorsed an agreement that the surplus arising under said policy should be applied in reduction of premiums on policy No. 26071. Sanford paid all premiums on policy No. 2607Í to and including February 10, 1899, a period of twenty-three years. In December, 1899, he went on a trip to Mexico with his wife, leaving his son Frank in charge of his office. Sanford returned from Mexico on February 27,1900, was taken ill March 8th, and died March 18th. Proofs of death were duly furnished the company under said policy No. 26071. The company refused to pay, and Mrs. Sanford brought this suit to recover the face of that policy. To an appropriate declaration the company pleaded the general issue. The defense in fact interposed at the trial was that the policy had lapsed for non-payment of the premium due February 10, 1900, and the reply set up by the plaintiff was that the company had by its conduct waived the forfeiture and had extended the time of payment sixty days, and that payment was tendered it within that time and during Sanford’s life. During the trial defendant admitted $2,680 was due under this policy as its surrender value, and tendered plaintiff that sum and also $20 for costs of court, and the tender being refused, deposited $2,700 with the clerk of the court. Plaintiff recovered a verdict for $4,924.32, and had judgment thereon, from which defendant appeals.
    On January 31, 1900, Frank Sanford received through the rus.il a notice from the managers and agents of the insurance company at Chicago, addressed to his father, informing him that the premium on said policy would be due on February 10, 1900; that the dividend on Ho. 113415 was $3.62, and deducting that, the balance of the premium on Ho. 26071 would be $128.48, and requesting payment on or before the day the premium fell due. On February 5, 1900, Frank replied to said managers as follows :
    “ Yours received, saying that Hr. Sanford’s insurance is due on the 10th of this month. He is in Mexico and will not return till the first of March and has left no orders with me for the payment of the same, or in fact said nothing about it. Will you please inform me just what the amount is that will be due and if it will be necessary for it to be paid on that date or if it can wait until he returns and then be paid. Please let me know just what your rules are in regard to this and oblige. ° You see it would be impossible for me to get any word to him and an answer back by this date.”
    To this Ira J. Mason & Son, said managers, replied as follows on February 8th :
    “We inclose herewith a note for an extension of sixty on the premium under policies Hos. 113514 and 26071 — E. Sanford. We suggest that you sign these notes for E. Sanford and in the meantime you can communicate with him and learn what his wishes are.”
    With this was inclosed an unsigned note for $128.48 premium and $1.28 interest, total $129.76, payable on or before April 10, 1900, to Ira J. Mason & Son, as agents of the insurance company, which recited it was given to extend the time of payment of renewal premium on policv Ho. 26071, and that if not paid when due there would be no further extension, and said policy should then cease and determine, and should be treated as if this conditional note and extension had not been given. This note was called by the insurance company" Form Ho. 71.”
    Frank Sanford received this letter February 9th. He testified that he at once sent Ira J. Mason & Son a postal acknowledging receipt of the letter and note, thanking them for the communication and saying it would be attended to immediately. Frank was in doubt whether it was intended that he should sign his father’s name or his own to the renewal note, and whether it was proper he should sign his father’s name. He had an older brother, Edward H. Sanford, who was in business in Chicago, and who would be home the evening of the next day, Saturday. He determined to consult him on the subject, and waited his arrival. Edward H. arrived at night of the 10th, and they had an interview that evening in their father’s office, as a result of which Frank signed his father’s name and his own name to the note, put a revenue stamp on it, and canceled the stamp. Edward H. made a copy of the note, which was preserved among his father’s papers. Frank then wrote the following letter to the company:
    “Herewith enclosed please find note properly stamped, for $129.76 due on or before April 10,19Ó0, payable to the order of Ira J. Mason & Son, your agent, which I have signed for my father, E. Sanford, and also myself, according to directions in your favor of February 8th, receipt of which I have acknowledged previously, given to extend payment of premium under policy 26071.”
    Frank then enclosed the note and letter in one of Mason’s printed return envelopes, bearing the address of the insurance company’s agents in Chicago, put on it a postage stamp, and, the post-office in Morris being then closed for the night, handed the letter to his brother, Edward H., to mail. The latter testified he carried it to Chicago on his return to that city on Monday morning, February 12th, and deposited it in a mail box in the Hock Island depot in Chicago immediately upon his arrival there. Ira J. Mason & Son then had an office containing seven rooms, in wrhich eight persons were engaged. The son, Fred Mason, testi-. fled no one but himself and his father had any authority to open mail; that no one else ever did in fact do so, and that they were both in the city from February 10th to lath. He and his father each testified they never received the note, and that the course of business in their office was such that they must haves, seen it if it had been returned to the office. Either Saturday or Monday, February 10th or 12th, Frank wrote his father what he had done, and on his father’s return told him about it. In the evening of March 8th, Edward Sanford wa's taken quite ill with a bad cold, which finally developed into pneumónia, of which he died. On March 10th, Sanford, being then confined to the house but not seriously ill, dictated to another son, William G-., the following letter to Mason :
    “ Upon my return from Mexico, I find your letter stating that the premium on mv policy Mo. 26071 was due on February 10, 1900, but you kindly extended the payment thereof sixty days. Please accept my thanks for the courtesy and I herewith enclose you Chicago draft for $130, not knowing just what the exact premium will be, and supposing that there will be some interest added thereto. If this is not enough, please inform me immediately and I will remit; if too much, you may credit the balance on the policy or , return, as you see fit.”
    This letter Sanford signed, and enclosed in it his check • for $130, drawn on the Illinois Trust & Savings-Bank, Chicago, and it was duly mailed to Ira J. Mason & Son. On the same day Mason wrote Sanford as follows :
    “If you wish to revive policy Mo. 26071, which lapsed thirty days since for non-payment of premium, please sign and return enclosed form Mo. 22, with premium, $128.48, within thirty days.”
    These letters passed each other in the mail, the latter being received and opened by Frank Sanford on Monday, March 12th. In the letter Mason enclosed a blank, known as form Mo. 22, which recited that policy Mo. 26071 had' lapsed for non-payment of premium due February 10th, and that the signer, for the purpose of obtaining its revival, certified that Sanford was still in good health and that there was nothing in his condition likely to impair his health or shorten his life, and that it was thereby agreed that if this representation proved in any respect untrue, the policy should be treated as if it had not been revived. On March 12th, Mason & Son wrote Sanford as follows, enclosing another form Mo. 22:
    “We are in receipt of your favor of the 10 th with remittance of $130. We find that we sent you vouv note, form Mo. 71, for signature, to extend the insurance under your policies, but we think you failed to send it in — at any rate we never received it. * Please now sign the enclosed form. Ho. 22 and return it.”
    Again on March 17th Mason wrote Sanford as follows, enclosing still another form 22:
    “If you have not already sent in form Ho. 22, for which we wrote you recently, kindly sign and send in the enclosed form that we may accept your check and send you the • company’s renewal receipt.”
    On March 22d W. G. Sanford wrrote Mason & Son of his father’s death, and they replied as follows on March 23d :
    “We are very sorry to hear of the death of your father announced in your letter of the 22d’ and in the funeral notice. We have • to-day written the company and will advise you further in a few days in regard to his insurance.”
    On April 3d Mason & Son wrote W. G. Sanford as follows:
    “ We are in receipt of yours of the 30th ult., enclosing proofs in the case of claim under policies Hos. 3330,113514 and 26071 on the life of the late E. Sanford. We forward them to the company to-day and hope to advise you further in about a week.”
    Meantime on March 28th they wrote him as follows, returning the check:
    “Enclosed we return check for $130 which was sent us after policy Ho. 26071 on the life of your father, E. Sanford, lapsed.. We held this check that you might send us form Ho. 22, which we waited for but did not receive. The company wishes us to write you that it will recognize this policy as good for $2,680, the amount of the paid-up policy which would have been issued had it been applied for. Enclosed you will find proofs of loss to be executed and returned to us.”
    E. L. Clovek and Wood & Oaklet, attorneys for appellant.
    Samuel Rich olson, attorney for appellee.
   Mb. Justice Dibell

delivered the opinion of the court.

The letter written by Frank Sanford to the company on February 5 th, was dated at Morris, Illinois, and on his father’s letter head. It informed the company his father was in Mexico and could not be reached and a repty returned in time to act by February 10th. It showed that the writer desired to be informed whether it was necessary the premium falling due February 10th should be paid on that date or if it could wait until Sanford returned and then be paid, and what the rules of the company on that subject were. It indicated that the writer desired and intended to do whatever was necessary, but wished to leave'till his father’s return whatever could be so left without infringing the company’s rules. It is not necessary to decide whether Mason & Son were bound to answer this letter. They did answer it, and they were bound to convey time information and not in any way to mislead Frank or to withhold some part of the necessary information. He had a right to rely upon their letter. In their reply Mason & Son enclosed a note for an extension of the premium for sixty days, and suggested that Frank sign it for his father, “ and in the meantime you can communicate with him and learn what his wishes are.” This letter was written February 8th, and liable to be received, as it was, on February 9 th. These agents did not tell Frank that unless the note was signed and returned to them, or the cash paid,'by the 10th, the policy would become forfeited. Frank’s letter to them showed them that he^was ignorant of the rules governing that subject, and applied to them for information.

He would naturally understand they were making a full answer to his letter, or as full an answer as was necessary for his correct guidance. If they had said to him, the cash or this note duly signed must reach them February 10th or the policy would be forfeited, it is a fair inference he would have done what was necessary to keep the policy alive. They told him only to sign the note for his father, and then during the sixty days thus provided, communicate with his father and ascertain whether or not he wished to pay the premium and keep the policy alive. The letter told Frank his father would have sixty days in which to make that determination. Mason & Son dated the note February 10th. It can not be assumed they intended Frank should sign it before that date. He did sign it on that date, and caused it to be mailed in time to reach the agents during business hours of the next business day. The letter left it uncertain Avhether Mason & Son desired Frank to sign his father’s name to the note or his own. It Avas natural that he should doubt whether he had a right to sign his father’s name, and should Avish to consult his older brother on the subject before acting. While Mason & Son probably meant that he should send the note to them before communicating with his father, their letter did not say so, and Avas uncertain in that respect. Their letter clearly implied that the note Avas not to be paid if his father desired to let the insurance lapse, and left it uncertain whether he Avas expected to send in the note before his father had ratified his act in signing it. Mason testified he knew Sanford’s financial circumstances were good, and he no doubt felt entirely sure that when Sanford returned or was reached he Avould not allow a policy to lapse upon which he had paid premiums for twenty-three years, aggregating over $3,000.

It is within the power of an insurance company to waive such a provision as that here relied upon, and this may be by its course of dealing with the insured. (Chicago Life Ins. Co. v. Warner, 80 Ill. 410.) In Metropolitan Accident Ass’n v. Windover, 137 Ill. 417, the court said:

“ It can not be doubted that while, by the express terms of the defendant’s by-laws, the consequences of a failure to pay an assessment within thirty days after notice was a forfeiture of all claims the member might have against the defendant by reason of his certificate, the forfeiture thus provided for was one which the defendant was at liberty to Avaive, and that such forfeiture, after being once waived, Avas incapable of assertion by the defendant. A forfeiture of this character is a matter of strict legal right, and the defendant, in order to assert it, must abide inflexibly by the terms of its contract. (Johnson v. Southern Life Ins. Co., 79 Ky. 403.) It follows that conduct on the part of the association inconsistent Avith an intention to abide by the strict terms of the contract and insist upon a forfeiture, if not amounting toa waiver, is at least evidence of a waiATer.”

We are of opinion that by what was said by Mason & Son in their letter of February 8th, and by their omission to state therein that forfeiture would follow a failure to pay or send the note by February 10th, they granted an extension of sixty days and waived their right to forfeit the policy. After a reasonable time in which to ascertain whether the letter meant he should sign his own name for his father or should sign his father’s name, he did both, and mailed the letter to the agents so that it should reach them during the next business day. We regard it as immaterial whether the note in fact reached the office of Mason & Son or miscarried in the mails. The agents did not intend the note should be enforcible if Sanford did not ratify it. The signing of Sanford’s name to the note without his authority ivas a mere matter of form. The substantial matter was that the time should be extended sixty days, so that Sanford might be notified and his wishes ascertained and carried out. The purpose obviously was that Sanford should be notified his name had been signed to a note for the premium without his authority, and that he could either ratify the act and pay the note within sixty days or could repudiate it and let the policy lapse and fake a paid-up policy for the surrender value if he preferred. Having granted an extension of sixty days the company could not, a month later, demand the execution of form 22, which required Sanford to admit thereby that the policy had already lapsed, and to certify that he was still in good health, as a condition to permitting the policy to remain in force during the sixty days.

On March 10th Sanford remitted Mason a check for $130, thanking him for the extension of payment for sixty days, and saying he did not know the exact amount required and presumed there would be some interest to be added, and requesting if the remittance was not sufficient to inform him immediately and he would remit, and saying if it was too much they could credit the balance due on the policy or return the surplus to him, as they saw fit. This was a ratification of the note and of the extension and an election to treat that policy as still in force. In reply to this Mason & Son did not deny his statement that they had extended the policy for sixty days, but called upon him again for the execution of form 22, to which we are of opinion they were not entitled. They did not object to payment by check, nor did they present the check to the Chicago bank on which it was drawn for payment. They retained the check not only till Sanford’s death on March 18th, but for ten days thereafter, and finally returned it on March 28th, eighteen days after it was sent. We are of opinion Sanford had the right to pay the required amount at the time he sent the check, and, as the check was sufficient to cover the amount due, their retention of it beyond a reasonable time for its return or its presentation for payment precluded them from afterward asserting a forfeiture. By the check Sanford assigned $130 of his funds in said bank to the company to pay said premium and interest thereon, and"the company’s agents retained the benefit of that assignment for eighteen days. It is a fair inference they would have cashed the check if Sanford had recovered. The retention of the check is strong proof that they had not decided to enforce a forfeiture even for some days after Sanford’s death.

If there was any inaccuracy in the court’s modification of the seventh instruction offered by defendant so as to state it was a sufficient delivery of the note if it was delivered by the maker to some person for transmission to the payee, we regard it as immaterial and harmless. The note having been signed as directed by defendant’s agents, and an attempt having been made to deliver it to them, the policy would not be avoided by failure to make a legal or sufficient delivery, in view of the fact that the agents did not instruct Frank to send the note to them, but left it an open question whether they did not intend he should retain it till his father ratified it. We find no reversible error in the rulings of the court. The proofs made a case for plaintiff.

The judgment is therefore affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell Higbee, J.,

license: Public Domain

text:
    Elias Lyman v. The People, etc.

      Adultery — Indictment for Living Together in an Open State of. —An indictment against two persons, E. L. and A., jointly, for living together in an open state of adultery, charging that the defendants, E. L. and A., not being then and there married to each other, unlawfully etc., did live, cohabit and have carnal intercourse together in an open state of adultery, he, the said E. L., then and there being a married man, having a lawful wife other than the said A. living, as he, the said E. L., and she, the said A., well knew, contrary, etc., sufficiently states the offense against E. L. under the statute.
    2. Same — The Offense Defined. — Adultery is the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife, whether the latter is married or single.
    3. Same — Separate Trials for Persons Indicted for living in an Open State of. — Where two persons are indicted jointly for living together in an open state of adultery, it is not essential that both of them be tried together, or for that matter, that both of them be tried at all; as the fact that one of them escapes or dies, does not prevent the trial from proceeding against the other.
    4. Marriage — Sufficiency of the Proof of, in Prosecutions for Diving in an Open State of Adultery. — Where an indictment against two persons for living together in an open state of adultery alleges that one of the indicted parties is married, proof by an eye-witness that on a certain day, at a certain place, a marriage ceremony between such person and a woman was performed by a minister, in which they stood up before the minister and joined hands as he requested, and lie asked the man if he took the woman to be his lawful wife, to love, protect and cherish her, and to care for her in health and sickness, to which he responded in the affirmative, and to like questions put by the minister to the woman she made like responses, after which the minister pronounced them man and wife, is sufficient proof of a marriage contract per verba de praesenti, between the parties.
    Indictment, for living in an open state of adultery. Error to the Circuit Court of Henry County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1901.
    Affirmed.
    Mr. Justice Higbee dissenting.
    Opinion filed November 15, 1901.
    0. 0. Wilson ¿nd JST. F. Anderson, attorneys for plaintiff in error.
    Emery 0. Graves, State’s Attorney for Henry County, attorney for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion, of the court.

Elias Lyman and a woman whose first name was Alice, and whose last name was unknown to the grand jury, were jointly indicted for living together in an open state of adultery. Apparently Alice was not apprehended. The proof was, she returned to Chicago when she ceased to live with Lyman. Lyman alone was placed on trial. His motion to quash was overruled as to the first four counts. He pleaded not guilty. A jury found him guilty under the second count. He interposed motions for a new trial and in arrest, which were denied. He was sentenced to imprisonment in the county jail for forty days and to pay the costs. He has Sued out this writ of error to review said judgment. ,

The second count, after laying the venue, charged that said Elias Lyman and the woman named Alice on Septemher 15, 1899, “ not then and there being married to each other, unlawfully, wrongfully and willfully, did live, cohabit and have carnal intercourse together in an open state of adultery, he, the said Elias Lyman, then and there being a married man having, a lawful wife other than the said Alice living, as he, the said Elias Lyman, and she, the said Alice, then and there well knew, contrary to the form, of the statute,” etc. It is argued this does not charge Lyman with the crime of living in an open state of adultery, for three reasons: first, because it does not charge that Alice was a married woman; second, because it charges that he had as wife both the other woman and also Alice, and hence.it is either uncertain or charges bigamy; and third, because the offense is charged to have been committed on a single day only, without a oontinuendo, and that is legally impossible.

Adultery is the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife, whether the latter is .married or single. (Miner v. People, 58 Ill. 59; Bouvier’s and Anderson’s Law Dictionaries, Titles, “ Adultery.”) The offense of the married person is adultery, and of the unmarried person fornication.

The second count does not in express terms aver whether Alice was married or single. It does aver that Lyman and Alice were not married to each other; that Lyman had a lawful wife then living; and that Lyman and Alice lived together in an open state of adultery. Alice could not have committed the offense of living in an open state of adultery with Lyman unless she had a lawful husband then living. In Crane v. The People, 168 Ill. 395, the court said, on page 397, that the word “adultery” has a well known meaning Avhich could not be misunderstood by a jury, and it is there implied that it was not necessary to explain in the indictment why the offense was adultery instead of fornication. This indictment charges the offense against Alice in the language of the statute, and it is usually sufficient to state any criminal charge in the language of the statute. But Alice is not on trial and we need not now determine whether she is sufficiently charged Avith a crime. It is not essential both guilty parties shall be indicted, and if jointly indicted it is not necessary both shall be tried. (Bishop on Statutory Crimes, Sec. 708.) If Lyman committed the crime he could be indicted and punished even if his paramour Avere dead, so that the indictment could not run against her. It might readily happen that the grand jury could not ascertain nor the prosecution prove whether the guilty Avoman was married or single. If the indictment averred in one count that she was married and in another that she was single, the prosecutor might be unable to prove which allegation was true; and if the allegation was material as against the married man, the jury could not in such a case convict him under either count. Lyman was guilty of adultery if he had a lawful Avife then living, if Alice was not that lawful wife, if - Alice and he were not married to each other, and if he and Alice lived, cohabited and had carnal intercourse together in an open state of adultery. All this the indictment charged against him. In 2 McClain’s Criminal Law, Sec. 1094, it is said:

“Where the offense may consist in connection between a married man and a -woman not, his wife, whether married or single, it is unnecessary to allege the state of the woman in this respect.”

We are of opinion the second count was sufficient in this particular as against Lyman.

The argument that the words “ he, the said Elias Lyman, then and there being a married man having a lawful wife other than the said Alice living,” mean that Alice also was his wife, is not based on what we conceive to be the natural meaning of the words employed, and we think it especially clear such is not their meaning here, when considered in connection with the other words in the same sentence charging said Lyman and said Alice with “ not then and there being married to each other.”

The offense is laid on a single day in the second count. If Lyman lived with Alice in an open state of adultery for four weeks or longer, as the evidence tends to prove, he was guilty of that offense on each day of the time. As to the allegation of time, this count follows the precedent given in Cameron’s Criminal Law, on page 19. In 2 McClain’s Criminal Law, Sec. 1087, speaking of living in a state of adultery, it is said it is not necessary the relation continue for any definite length of time; that it may be sufficient that it is for a day Only, if it is with an intention of continuance. We are of opinion the court did not err in overruling the motion to quash the second count.

It is argued there is no sufficient proof that Lyman was legally married. There is proof by an eye-witness that on December 14,1858, at Rochester, Vt., a marriage ceremony between Lyman and a woman was performed by Rev. Mr. Tracy, á Congregationalist minister of that place; that Lyman and the woman stood up; that the minister stood in front of them; that they joined hands when the minister requested them to do so; that the minister employed the marriage service used by the Congregationalists; that the minister asked Lyman if he took her to be his lawful wife, to love, protect and cherish her, and care for her in health and sickness; that Lyman responded in the affirmative; that the minister put like questions to the woman, and she made like responses; that when the minister came to the close of the ceremony he pronounced them man and wife; that thereafter Lyman lived with said woman as his wife in Kewanee many years, and they raised a family of children, and that she still lives there in the same house where they formerly lived together. We think this was sufficient proof of a marriage contract per verba de praesenU between those parties (Hiler v. The People, 156 Ill. 511), and that it was not necessary to prove that the clergyman had been ordained, nor that the laws of Vermont authorize a clergyman to solemnize marriage. There was other proof having some bearing on the question. Several witnesses testified that they knew Lyman’s wife. She was repeatedly spoken of in the testimony as Mrs. Elias Lyman and Mrs. Lyman. Defendant’s counsel asked a witness if she had not frequently talked over the marriage ceremony with Mrs. Lyman. Several witnesses had heard defendant speak of and to her as his wife. Adelaide Lyman was sworn as a witness for the prosecution. Defendant’s counsel objected, and said to the court, “ The objection is that she is the defendant’s wife.” The objection was afterward withdrawn. Several of these matters do not appear in the abstract. We think the proof in this respect sufficient.

It is argued the proof does not establish that Lyman and Alice lived in an open state of adultery together. At this time Lyman had left the home in Kewanee where he and his wife had lived together, and where she still lived, and was now living on one of his farms. Alice lived with him a total of four weeks or longer, going away once and returning. She went upstairs to bed at night with Lyman. The only places where she could sleep were two bedrooms. One had only a cot in it, and was occupied by a colored woman alone. The other was Lyman’s bedroom. Lyman and Alice were seen going into it together at bed time, and were frequently heard talking in it after retiring for the night. At one time they were seen in bed together in their night clothing. At another time they were seen by another witness in the act of sexual intercourse in the same bed. Articles of woman’s clothing were seen in his room, which she afterward wore. He was seen to embrace her upon the porch of his farm house. He drove into town nearly every day, and always took her with him. They attended the county fair together. He bought clothing and a diamond ring for her and had it charged to him, and put the ring upon her finger. When she had a dress skirt fitted she went into the parlor of the dressmaker’s establishment and showed it to Lyman, to see if it pleased him. He said it did, and that she had nióe hips. He had the skirt charged to him. • He introduced her as Mrs. Lyman, and as his wife to several people. The only proof introduced for defendant was to the effect that he was insane, and that his insanity took the direction of lewdness and sexual extravagance. After this had all been heard, and evidence in rebuttal on that subject, defendant withdrew the evidence offered as to his insanity. The proof for the prosecution was made up of many details testified to by numerous witnesses. Hone of this testimony was contradicted by any witness. The conclusion from all the facts is irresistible that Lyman and Alice lived together openly as husband and wife, lived together, occupied the same room and bed at night, rode about the country together, and generally followed the course of conduct toward each other which husband and wife are accustomed to, for about four weeks. Ho one was deceived into thinking they were husband and wife, for those whom they met knew Lyman had a wife, the mother of his children, living in Iiewanee. But it was not necessary to the crime that the public should believe they were husband and wife. In our judgment the evidence required the jury to find that they lived together in an open state of adultery.

Complaint is made that the instructions given at the request of the prosecution did not define the word “ adultery.” This is answered by what is said in Crane v. The People, supra. Some of defendant’s refused instructions wholly misstated the law. Others were not based upon any evidence, such as those which referred to “ occasional visits” between Lyman and Alice. There was no proof of occasional visits. If any of the refused instructions might have been given, still their refusal did defendant no harm. The fact of his guilt was clearly proven, and the only defense he attempted he afterward withdrew. Ho fact testified to by any witness for the people was controverted by any other witness. The jury could not have returned any other verdict. The judgment is affirmed.

Higbee, J.,

dissenting.

I am of opinion the count upon which Lyman was convicted failed to charge, with sufficient clearness, the offense contemplated by section 11 of the criminal code, under which the indictment was found. That section (Hurd’s Stat. 1899, p, 563) provides :

“ If any man and woman shall live together in an open state of adultery or fornication, or adultery and fornication, every such person shall be fined,” etc.

In construing the statute it is necessary to bear in mind that three distinct offenses are recognized by it: one, living in an open state of adultery; another, living in an open state of fornication; and the third, living in an open state of adultery and fornication. The statute does not define adultery or fornication, but the manner in which these terms are used in the section above named indicates beyond question an intention to make a distinction between them. In the case of Miner v. The People, 58 Ill. 59, it is said:

“ Adultery is criminal intercourse between a married person and one of the opposite sex, whether married or . single.”

It is to be observed, however, in that case the indictment was apparently against the man alone, and in order to cover contingencies, there were two counts, one charging adultery and the other fornication. The defendant there was found guilty of adultery, and among the reasons given by the Supreme Court for reversing the case, was the one that the evidence of the marriage of the woman was wholly insufficient.

In the case of Crane v. The People, 65 Ill. App. 492, where there was an indictment under the statute in question here, it was said:

“ The well known meaning of the word adultery is the illicit sexual connections of a man and woman who are not married to each other, and each of whom has a living husband or wife at the timé, and the jury could easily understand that from the language of the statute.”

This case was affirmed on appeal by the Supreme Court in Crane v. The People, 168 Ill. 395, where the following language is used in the opinion:

“ The word adultery has a well known meaning, and could not, at least, as used in this indictment, have been misunderstood by the jury; * * * and if it were necessary to explain in the indictment why it was adultery, the indictment did so by alleging that Crane was then and there a married man, having been previously married to one Jessie E. Doolittle, and that Mrs. Stiles was then and there a married woman, having been previously married to one Everell D. Stiles.”

It might, therefore, well be inferred from the above cases that to sustain the charge of adultery under this statute it would be necessary to prove that both the persons were married, the one having a wife and the other a husband living. I regard it, however., as immaterial which of the definitions of adultery above referred to is technically correct as applied to this statute. Had Lyman been indicted alone, it may be that the allegation that he was a married man, having a lawful wife other than the said Alice living, would be sufficient to charge him with adultery, even in the absence of any allegation as to whether the woman was married or single. But, when the indictment is a joint one against the man and woman, I am of opinion that by the language of the statute, “If any man and woman shall live together in an open state of adultery ” is meant, that to constitute the offense both must be guilty of adultery — that is, that both must be married; by living in an open state of fornication is meant that both must be unmarried, and by living in an open state of adultery and fornication is meant that one must be married and the other unmarried. Ho other construction of the statute could make it .reasonable and give effect to all its parts.

This indictment was a joint one against Lyman and the woman designated as “ Alice.” It charges them with living together in an open state of adultery; and while it states that Lyman was a married man having a lawful wife other than the said Alice living, it wholly fails to state whether Alice was married or unmarried. The language of the indictment must be strictly construed, and if it be taken most strongly against the State we must assume that the charge as to Alice is that she was unmarried and therefore could not have been guilty of adultery. The charge against them, therefore, should have been that of living together in “an open state of adultery and fornication.” As the facts set out in the second count of the indictment do not constitute the offense of adultery, with which the two defendants are charged, I think it should have been quashed.


author: Mr. Presiding Justice Dibell

text:
    W. H. Grooms et al. v. Mary E. Lieurance, Adm’x, etc.
    1. Promissory Notes — Indorsements May be Shown to be Incorrect. —In an action by an administratrix of a deceased person on a promissory note against the parties making and delivering the same to such deceased person in his lifetime, such parties may show that the indorsements on such note are incorrect.
    2. Verdicts — To Be Set Aside When Against the Weight of the Evidence. — Where a verdict is clearly contrary to the evidence it is the duty of the court to set it aside.
    Assumpsit, on a promissory note. Appeal from the Circuit Court of Warren County; the Hon. John J, Glenn, Judge, presiding. Heard in this court at the October term, 1901.
    Reversed and remanded.
    Opinion filed November 15, 1901.
    C. A. McLaughlin and Grier & Stewart, attorneys for appellants.

      John JB. Brown, attorney for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

In this suit, brought before a justice, and tried in the • Circuit Court on appeal, the administratrix of the estate of S. T. Lieurance, deceased, sought to recover upon a promissory note, payable to deceased, signed by the defendants, William H. and Samuel Grooms, dated September 1, 1891, due in twelve months, for $142, with interest at seven per cent per annum, on the back of which was indorsed a payment of $76.14 on September 11,1895. There was a verdict and a judgment for $137.15, from which defendants appeal.

The defense was that in 1892 and 1895 defendant W. H. Grooms threshed oats and wheat for deceased, the compensation for which was to be applied on this note; that the work in 1892 was not indorsed at all, and the work in 1895 was indorsed for an insufficient amount.. Whether it be called payment or set-off, we are of opinion that the clear preponderance of the proof established that defendants should have been allowed a very considerable sum as a defense against the note. Indeed, it can hardly be said there was any substantial proof to the contrary. The verdict was for nearly the amount due according to the face and back of the note. A new trial must therefore be awarded. Reversed and remanded.


author: Me. Presiding Justice Dibell

text:
    Mary E. Truax v. William. H. Gregory.
    1. Freehold — When Involved in a Decree. — A life estate is a freehold, and the question whether a defendant, in a proceeding in chancery to establish and define a right • of way over his lands, has a life estate in the same, subject to the right of way, or has no interest whatever therein, involves the determination of the existence of a freehold, and this court has no jurisdiction to decide the question.
    Bill to Establish and Define a Right of Way. — Appeal from the Circuit Court of McHenry County; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1901.
    Dismissed.
    Opinion filed November 15, 1901.
    Y. S. Lumlet, attorney for appellant.
    D. T. Smiley, attorney for appellee.
   Me. Presiding Justice Dibell

delivered the opinion of the court.

Mary E. Truax filed a bill in equity against her brother, William H. Gregory, in which she alleged she owned a life interest in certain real estate under the will of their father, Stephen 0. Gregory; that her said brother owned certain adjoining lands under the same will; that said will also gave a sister, Cordelia Stevens, certain other adjoining lands, which she afterward conveyed to William; that said will gave William and Cordelia each a right of way to their lands over the premises devised for life to Mrs. Truax; that deceased had for many years maintained a private road from the public highway back a part of the distance across the Truax lands toward said other lands, with fences on each side of said private road and gates at the ends, and said devise of a way referred in part to said fenced and traveled lane; that the rest of the way across said Truax lands, deceased had no well defined path but drove across them in many different places during his life; that William claims and exercises the right to drive teams and stock across them wherever he sees fit, whereas he is only entitled. to drive across them by the most direct route; that said gates are necessary to good husbandry and to complainant’s use of her lands as farm lands; that William has repeatedly broken down and removed the gates at the ends of the lane and threatens to continue to do so, and that thereby live stock has strayed into the highway and into complainant’s adjacent fields. She prayed a temporary and a perpetual injunction restraining William from destroying said gates or leaving them open; and that the court would by decree fix and determine said right of way beyond said lane. Defendant answered. There was a decree which established a right of way by metes and bounds, following the fenced lane as far as it went, and gave defendant the right of way unobstructed by gates. This is an. appeal by complainant from said decree. Defendant has moved to dismiss the appeal on the ground that a freehold is involved. The motion was taken with the case.

Defendant argues that by the true construction of the several devises in the will of Stephen 0. Gregory, William and Cordelia were given absolutely a certain way, and that no interest in the land within the boundaries of said way was given to Mrs. Truax, but that the land in said way was excepted from the grant to her. Relying upon that construction of the will defendant contends it does not concern Mrs. Truax how he uses this way, and that she can not be heard to complain of the decree in that respect for want of any title to the subject-matter. The pleadings permit him to make this contention. He did not by his answer expressly assert title in fee in himself to the land in said way, except so far as he set up the provisions of the will in his and Cordelia’s favor, but he denied the title and interest of Mrs. Truax by this allegation in his answer: He denies that said complainant is in possession of, or occupies, or has any life estate in the premises described in said bill of complaint.” Whether by “ premises described in said bill of complaint” he meant all the lands claimed by Mrs. Truax, or only the way in controversy, may be uncertain, but the whole includes all its parts, and said allegation includes a denial that Mrs. Truax is in possession of, or occupies, or has any life estate in the land within the limits of said lane or driveway. He also alleged in his answer that there had always been a well defined lane or driveway across all said lands. The decree did not construe the will, but used the language of the will in describing the interests of the parties, so that if defendant's construction of the will is correct that Mr. Truax has no interest in the lane, the decree means the same thing.

All Mrs. Truax asks in argument is a reversal of that part of the decree which permits William the use of the lane without a gate at its east end. In order to determine that question we must decide whether the will gave her a life estate in the lane itself, subject to the use of it for a way by William and Cordelia, or whether Mrs. Truax took no interest therein under the will. If we decide that contention in her favor, then we must further determine whether she has a right to a gate across the way. But if we decide the will gave her no interest in the land within the way, then we must hold she has no right to question that part of the decree which relates to the gate as it was upon land in which she had no interest. It may well be that in order for William to contend here that the decree should have specifically fixed the fee title to the lane in him he should have assigned cross-errors, but no cross-errors are necessary to permit him to contend that complainant had no title to the land where the gate was and therefore can not be heard to question the decree concerning the gate. But a life estate is a freehold, and the question whether Mrs. Truax has a life estate in the lane, subject to the way, or has no interest whatever in the lane, involves the determination of the existence of a freehold. This court has no jurisdiction to decide that question. The appeal will therefore be dismissed, with leave to appellant to withdraw her record, abstracts and briefs, if she desires.


author: Hr. Justice Waterman

text:
    Ralph Metcalf, Receiver, etc., v. Arthur W. Draper.
    1. Promissory Notes — Fraud in the Execution of, When a Defense, —Fraud in the execution of a promissory note, in order to render it a defense against a bona fide holder for value, must have been such that the party signing the note was deceived as to the effect of his act.
    3. Same — Possession, When Evidence of Title. — Possession of a negotiable note indorsed in blank is prima facie evidence of title, and the holder of such instrument is presumed to have taken it in good faith for value, before maturity, in the usual course of business and without notice.
    3. Same — Innocent Takers Before Maturity and Without Knouiedge. — The party who takes a negotiable promissory note before its maturity for a valuable consideration, without knowledge of any defect of title and in good faith, holds it by a title valid as against all the world.
    4. Same — Suspicion of Defect in Title Not Sufficient to Defeat It.— Suspicion of defect of title, or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker at the time of the transfer of a promissory note, will not defeat his title; such a result can only be produced by bad faith on the part of the taker.
    5. Same — Burden of Proof on Parties Who Assail a Promissory Note. —The burden of proof is upon the person- who assails the right claimed by another in the possession of a promissory note.
    6. Same — What Is Not an Obtaining by Fraud and Circumvention. —Where a promissory note is executed by a party freely and voluntarily, and he well understands what he is doing, it can not be said that such note is obtained by fraud and circumvention.

      7. Same — Accommodation Paper Negotiated in Good Faith. — Accommodation notes, where negotiated in good faith, and for value, in the usual course of business, are binding upon the maker, and he can not, as against such a holder, set up the lack of a consideration as a defense.
    8. Notice — To the Officers of a Corporation When Dealing with the Corporation in Their Own Interest, Not Notice to the Corporation. — • Notice to an officer of a corporation is not notice to the corporation in transactions where the officer is dealing with the corporation in his own interest and not in the interest of the corporation.
    9. Same— Where a Note Appears on Its Face to he Secured by a Trust Deed. — The fact that a promissory note appears on its face tobe secured by a trust deed does not affect its negotiability or require a bank to make inquiry as to whether the statement concerning such security is true.
    Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Edwakd F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed November 26, 1901.
    Statement. — On March 4, 1897, Ealph Metcalf, as receiver of the Dime Savings Bank, obtained in the Circuit Court of Cook County against Arthur W. Draper a judgment by confession for $5,850.93, being on one principal note of $4,000 and eight interest coupon notes of $140 each. All of the notes were dated May 1, 1891. The principal note was due five years after date, and the coupon notes . were respectively due May 1st and November 1st of each year. The principal note bore on its face the following-clauses:
    “It is an express condition of this note that in case of default in the payment of the interest, or any part thereof, to accrue thereon when due, as evidenced by said coupons, and for ten days thereafter, the said principal sum of this note shall, at the option of the legal holder thereof, at once become due and payable. The payment of this note is secured by trust deed of even date herewith on real estate in Cook County, Illinois.”
    The principal note also contained on its face a power to confess judgment in part as follows: “At any time after said note becomes due, either by the option of the legal holder or otherwise, or either of said coupons or any part thereof become due.”
    Leave was given to the defendant, Arthur W. Draper, to plead, and on March 22, 1897, an order was entered in said cause, permitting him to file pleas in the suit, which were filed and issue joined thereon.
    On May 1, 1891, Arthur W. Draper, the defendant, was a young man twenty-one years and nine months old. He was a clerk in a real estate office, in the employ of a man named Weekly, on commission for such sales as he might make, his salary amounting to about $5 per week. He was in an office at 84 La Salle street, near the corner of Yfashington street, in Chicago. He had no money, no commercial standing and was financially worthless.
    Lyman E. Giddings was a real estate dealer, having an office in the Chamber of Commerce building, on the corner of Washington and La Salle streets, and the Dime Savings Bank was, as its name implies, a savings bank, and ivas located on Washington street, near Clark street, in Chicago.
    Some time in the latter part "of April, 1891, a man by the name of Howard asked young Draper whether he would be willing to take title to some property, sign a mortgage for it and reconvey it. As a result, Howard took young Draper to the office of Lyman E. Giddings. Draper testified that Giddings showed to him warranty deeds conveying property to him and told him that “ there would be no liability on the notes, as the persons taking the notes would first have recovery on the property and that the property was worth twice the trust deed and notes that I gave on the property. Giddings also showed Draper trust deeds securing the notes, and deeds conveying the property back from Draper to Frank C. Giddings, his brother. He paid Draper $5 for signing $16,000 of such notes, one of which notes for $4,000, and the coupons attached thereto, was the-note on which this suit was brought. It was understood between Draper and Lyman E. Giddings that all of the-papers were to be put on record simultaneously.
    Giddings did not record the warranty deeds nor the trust-deeds securing the notes.
    Giddings was at this time a director in the Dime Savings Bank, as was also Mr. W. Kelsey Eeed, a witness called by the plaintiff. Hr. Reed had been the treasurer of said savings bank from its organization in 1872, until August, 1893. Prior to Hay, 1891, Lyman R. Giddings had borrowed of the bank from time to time large sums of money, giving as security therefor notes he held purporting to be secured on real estate.
    On June 10,1891, certain paper, including two of the notes of Arthur W. Draper for $4,000 each, were substituted for paper then so held by the bank and then due. Giddings, at this time, promised to bring in the trust deed by which the notes were secured, but never did so.
    The defendant pleaded that the notes were obtained from him by the fraud and circumvention of Giddings; that the plaintiff had notice of this; that there was no consideration for the execution of the notes, and that of this the plaintiff had notice; that the plaintiff did not part with anything of value for the notes.
    The jury found the issues for the defendant and there Avas judgment on the verdict.
    Walker & Payne, attorneys for appellant; E. C. Lindley, of counsel.
    Harston, Augur & Tuttle, attorneys for appellee.
   Hr. Justice Waterman

delivered the opinion of the court.

Appellee urges that the notes under consideration were put in circulation fraudulently, and that such being the case the burden Avas upon the plaintiff to shoAv that it took the notes in good faith and for value, in the usual course of business. In support of this contention it calls attention to the Hide and Leather Bank v. Alexander, 184 Ill. 416, same, 82 Ill. App. 484; Hodson v. Eugene Glass Co., 156 Ill. 397; Charles v. Rennick, 156 Ill. 327; Wright v. Brosseau, 73 Ill. 381; and to Vol. 4 Am. & Eng. Ency. of Law, 2d Ed., 321.

Heither of the cases cited is like" the present. In Hide and Leather Bank v. Alexander, Hrs. Alexander, the owner of the note, merely left it with Theodore Schintz in order that he might obtain from Gotfred Schmid a neiv note in the place of that left with Schintz. Schintz had neither interest, right nor title to the note, and no authority to do anything except to surrender it upon obtaining from its maker a new note upon its maturity. Schintz fraudulently converted the note to his own use, embezzled it, was guilty in respect to it, under the statutes of this State, of larceny. Such being the facts, the burden of proof was thrown upon the bank receiving it from Schintz to show that it took it in good faith, for value, before maturity, and in the usual course of business.

In the case of Charles v. Bennick the note under consideration was executed in the firm name by one Gold th waite, for his individual purpose, after he had ceased to be a member of the firm; was a fraudulent transaction as to it. Such being shown, the burden was thrown upon the banker who took the note to show that he received it in good faith, for value, and in the usual course of business.

In the case of Iiodson v. Eugene Glass Company it appeared that Fleming, the president of the company, executed to himself its note upon a mere pretense that the company was indebted to him in that sum. Fleming thus having by fraud obtained the company’s note, it was held that the holder thereof was bound to show that he acquired it in good faith, for value, in the usual course of business, and in such a way as not to create a presumption of knowledge of its invalidity.

In the case of Wright v. Brosseau, one of the partners of the firm of Brosseau, Martin & Company had fraudulently issued, in the firm name, its note. Such being shown, it was held that an indorsee of the note could not recover thereon, unless he came by the note fairly, without knowledge of the fraud, and paid a consideration for it.

The citation from Yol. 4 Am. & Eng. Ency. of Law is merely as to illegality or fraud in the inception of a negotiable instrument and not as to fraud committed after the maker of the note had, with full knowledge of what he was doing, parted with it.

In the present case the defendant, Draper, testified that Mr. Howard came to him and asked him if he had any objections to taking the title to a piece of property, and introduced him to Mr. Giddings; that Mr. Giddings told him that the notes were secured by real estate in Holstein; that he intended to build upon some vacant lots there, and being in the mortgage and banking business, he did not desire to make the instruments himself; and that for and in consideration of his signing the notes, Giddings gave him five dollars; that Giddings told him there was no liability on the notes as the person taking the notes would first have recourse on the property and that the property was worth twice the amount of the trust deed and notes that he gave on the property; that a "warranty deed of the property was given to him, Draper, and he at the same time executed a warranty deed conveying it back, and also a trust deed securing the notes, and left these deeds with Giddings, who promised to record them; that he, Draper, had been in the real estate business and was familiar with it and knew exactly what he was doing "when he signed these notes for Giddings; that he was signing $16,000 worth of what purported to be mortgages on real estate property and was signing $16,000 worth of notes; that Giddings said he did not want to sign them himself; but he probably might want to sell them; that he went to Giddings’ office of his own accord and went there to sign these notes, because he was going to get five dollars for signing them; that he was willing to state to the jury that at that time he was willing to sign $16,000 worth of notes and give them to a man whom he had only met two or three times, for five dollars; that the warranty deed conveying the property to him was handed to him and he looked over the description in it and compared it with the description in the trust deed; that he does not know whether he | got the property thereto or not, for he handed the deed' back to Mr. Giddings, handed it back voluntarily, as the whole transaction was voluntary. “ Ho, it was practically compulsory. There was an understanding that I was com-' polled to, or I could not get the five dollars, unless I did. It was not voluntary. I got the five dollars; that was all I wanted to get.” That he does not know whether Giddings afterward failed in business or not. “ After I got my five dollars, I let him alone. I don’t know whether he failed or not.” “ From the time of this transaction, I had no knowledge of these notes until Mr. Plum mentioned them to me and Mr. Giddings had told him that the}7 had been destroyed.” This testimony of the defendant was undisputed and not qualified by any other witness. Indeed, he is the only witness who testified to the circumstances of his execution of the notes.

The testimony of the defendant shows there was no fraud in the inception of the notes; that they were not obtained from him by duress, fraud or circumvention; that so soon as they were taken away by Giddings, they, being each made payable to the order of Draper and by him indorsed, were negotiable instruments, valid, without proof other than their introduction in evidence in the hands of an indorsee thereof, and were not merely alleged notes, as they were described five times in an instruction given by the court at the instance of the defendant.

The fact that Giddings, after Draper had gone away, retaining the notes in his possession, failed to record the various deeds by which they purported to be secured, did not affect the validity of them, nor throw upon the plaintiff the burden of establishing the fact that it took them in the usual course of business, without notice and for value.

Fraud in the execution of a note, in order to render it a defense against a bona fide holder for value, must have been such that a party signing was deceived as to the effect of his act. Gehlbach v. Carlinville Nat. Bank, 83 Ill. App. 129; Richelieu Hotel Co. v. Int. Met. Co., 140 Ill. 248.

Possession of a negotiable note indorsed in blank is prima facie evidence of title and the holder of such instrument is presumed to have taken it in good faith for value, before maturity, in the usual course of business and without notice. 4th Am. & Eng. Ency. of Law, 2d Ed., 318; 1st Smith’s Leading Cases, 780.

The fact that Giddings was a director of the Dime Savings Bank did not charge it in this transaction had with him, with notice of what he knew concerning the circumstances under which the note was given. Notice to an officer of a corporation is not notice to it in transactions where the officer is dealing with the corporation in his own interest and not in the interest of the corporation. Higgins v. Lansing, 154 Ill. 387; Seaverns v. Presbyterian Hospital, 173 Ill. 420; Waynesville National Bank v. Irons. 8 Fed. Rep. 1.

Nor did the fact that the notes appeared upon their face to be secured by a trust deed affect their negotiability or require the bank to make inquiry as to whether the statement concerning security was true. Olds v. Cummings, 31 Ill. 188; Biegler v. M. L. & T. Co., 62 Ill. App. 560; Howry v. Eppinger, 34 Mich. 29; Buehler v. McCormick, 169 Ill. 269.

It is urged that the conduct of the bank in taking a note without inquiry and its failure to bring suit upon the same as soon as it could, tend to show bad faith upon its part and warranted the jury in finding that it acted in bad faith. The uncontradicted evidence was that at the time it received these notes from Giddings, it had been and was then loaning to him large sums of money, he being in good credit and repute, and it not having then, nor until long after this transaction, lost a dollar by him, he having always protected all paper he gave to it; and that the bank had an agreement with him that he would, as he was accustomed to do, protect all paper he gave to the bank. Under these circumstances, in the usual course of business, it took these notes from him, giving him in exchange certain other notes which he had left with it and which were then about to mature or had just matured. Some of these notes surrendered to Giddings in exchange for these, it appeared upon the trial, were made under circumstances similar to those existing when the notes in question were executed, save that it does not appear whether these notes were or were not actually secured by trust deeds or mortgages on real estate.

' As to most of the notes given by the bank to Giddings in exchange for these, according to the bank’s register, they were secured upon real estate, were taken by the bank in the usual course of business for value, without notice. The ba'nk gave value for them and the evidence shows that it had reason to and did believe they were valuable assets, the payment of all of which was guaranteed by Giddings. Doubtless, the bank’s officers were negligent in not having abstracts of title given to it, showing that all the notes it received from Giddings purporting to be secured by real estate were actually so secured upon property of an adequate value. But this negligence in this regard does not show want of good faith upon its part.

The defendant testified that at the time he executed these notes, he was financially irresponsible. What inducement could there have been for the bank to obtain his unsecured paper, if its officer did not believe, as its cashier testifies, that in dealing with Mr. Giddings they were transacting business with an honest and responsible citizen, whose word they could rely upon and whose conduct had always been that of promptly discharging all his obligations? Moreover, if the officers of the bank were guilty of carelessness or even gross negligence, toward whom were they so negligent?

The defendant, of his own free will, had executed two notes, each for $4,000, and given them to Giddings, with authority to negotiate if he saw fit.

The officers of the bank did, indeed, owe a duty to its depositors who trusted them with their money, but they owed no duty to the defendant whose notes were offered to it, as he had authorized Giddings to do. For the protection of the stockholders and depositors of the bank, its officers, doubtless, should have seen to it that the trust deed purporting to secure these notes was placed upon record, but it did not owe such a duty to the defendant.

The Supreme Court of the United States in the case of Murray v. Lardner, 2 Wall. (U. S.) 110, say of the case of Goodman v. Simonds:

“That case affirms the following proposition: The party who takes it (commercial paper) before due for a valuable consideration, without knowledge of any defect of title, and in good faith, holds it by a title valid against all the world.”
“ Suspicion of defect of title or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker, at the time of the transfer, will not defeat his title. That result can only be produced by bad faith on his part.”
“The burden of proof lies on the person who assails the right claimed by the part}' in possession. Such is the settled law of this court, and we feel no disposition to depart from it.”

The Supreme Court of this State in Comstock v. Hannah, 76 Ill. 530, quoting the above, say:

“Such is the settled law of this court and we feel no disposition to depart from it.”

To .the same effect is Bemis v. Horner, 165 Ill. 347, as well as many other cases.

That the defendant’s note went into circulation was not only his own fault, but in accordance with his intention, and for which he received all the consideration he asked or expected. That the deeds by which it purported to be secured were not placed upon record was entirely his fault. They were in his power and he could have recorded them himself, or, as he ought to have done, retained his note until he knew they were recorded and the security sufficient. The only promise to him which Giddings left unfulfilled was his statement that he would record the deeds.

For one year after the execution of the-note upon which suit was brought, the interest upon it appears to have been paid. If a man, carelessly, and without consideration, let his note go into circulation and an innocent party purchases it in the usual course of business, upon him must fall the loss, for he it was whose conduct made it possible for the purchaser to be deceived. Leach v. Nichols, 55 Ill. 273.

The jury should not have been instructed as to what they might do upon the hypothesis that the note was obtained by Giddings without his having given the agreed value therefor, because there was no evidence warranting such hypothesis; on the contrary, the only evidence upon the subject was that Giddings did give all that he agreed to for the note and all that he was asked to give. Mor should the jury have been instructed as to what they might do upon the hypothesis that the notes were obtained from Draper by fraud and circumvention, because there was no evidence tending to show that the notes were obtained from the defendant by fraud and circumvention. On the contrary, the defendant testified that they were executed by him freely, voluntarily, and that he well understood what he was doing. Mor should the jury have been instructed as to what follows when a maker of a note shows that it was obtained from him by fraud, because there was no evidence that the note was obtained from Draper by fraud. On the contrary, he testified that he gave the note to Giddings just as Giddings asked, and as he, the defendant, agreed to do, for five dollars paid to him.

As we have before stated, the only complaint he makes as to the conduct of Giddings is as to Gidding’s failure to record the deeds purporting to secure the note, after he, the defendant, had given the notes to Giddings and authorized him to negotiate the same. Mor should the jury have been instructed, as they were by the fourth instruction, that when the maker of a note shows that it was obtained from him by fraud, the burden of proof is upon the plaintiff to show by a preponderance of the evidence that he acquired the notes in question in good faith, for value, and in the usual course of business, and in such a way as not to create a presumption of knowledge of their infirmities.

Mor is it the case, as the jury were told in the fifth instruction, that the want of a consideration destroys the validity of a note in the hands of any one chargeable with notice of such want of consideration, and this without regard to the good faith of the transaction in which the note was given.

The giving of mere accommodation notes is a common occurrence. Such notes, if negotiated in good faith, for value, in the usual course of business, are binding "upon the'' maker, and he can not, against such a bolder, setup the lack of consideration. Daniel on Negotiable Instruments, sections 189, 190.

In the present case, the note was given for a good and valid consideration, small and inadequate as it was.

The judgment of the Circuit Court is reversed and the cause remanded.


author: Mr. Justice Waterman

text:
    Charles S. French et al. v. The Northern Trust Co., Trustee, etc.
    1. Courts of Equity — Power io Accept Resignations of Trustees and to Appoint Their Successors. —The fact that a testator by a clause in his will states that a person to whom a legacy is given has shown indications of not being in his right mind, and directs that his entire share shall go and be vested in a trustee, but shows no intention in such will to put the estate so bequeathed to such person out of his control during his entire life, upon the resignation of the trustee nominated in the will, a court of equity may enter a decree accepting his resignation and appoint another as his successor, with the same powers as conferred by the will upon the original trustee.
    Creditor’s Bill. — Appeal from the Circuit Court of Cook County; the. Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900:
    Affirmed.
    Opinion filed November 26, 1901,
    Statement. — Appellant Charles S. French, having obtained a judgment against appellant Charles J. Walter, for over $9,000, had execution issued thereon, and after demand, the same was returned, no property found and no part satisfied. Whereupon French filed a creditor’s bill against the Northern Trust Company and Charles Joel Walter, alleging that it, as trustee for Walter, had in its hands cash and securities amounting to upward of $48,000, and asked that a sufficient amount thereof to pay the aforesaid judgment should be turned over for the satisfaction thereof.
    The bill alleges that in 1875, Jerusha Maxwell, the grandmother of Charles Joel Walter, died, testate, bequeathing by her will certain property in equal shares to Ida Ophelia Walter and Charles Joel Walter. As to the bequest to Charles Joel Walter, item five of the will was as follows:
    ItemS. “As Charles Joel Walter has shown indications of not being in his right mind, I direct that his entire share shall go to and be vested in a trustee, who shall see that the said Charles Joel is properly maintained and comfortably provided for out of such property held by such trustee, he using such amount for that purpose as in his discretion shall seem best, with power in said trustee to sell and convey any property belonging to share of said Charles Joel, when in his discretion it shall appear proper; and said trustee shall convey, transfer and deliver to said Charles Joel his share when said trustee shall be satisfied that said Charles Joel is competent to take care of the same and not before, unless Joel C. Walter, father of said Charles Joel, shall direct said trustee so to do, and said Charles Joel is to have no power to control, dispose of or incumber such share by any act done or suffered by him, until same shall have been actually conveyed to him by said trustee. In case of death of said Charles Joel before property covered by this item is turned over to him by said trustee, the legal title shall vest in his heirs. I nominate and appoint Alonzo J. Willard to be trustee under this item with respect to share allotted to said Charles Joel. In case of his death or refusal to accept, then in default of further appointment by me, the executors and trustees under will of his father, Joel C. Walter, or such other person or persons as said Joel C. shall by will or deed appoint, shall be such trustees.”
    The bill further sets forth that said Willard assumed to and did act as trustee under the will until 1886, and at various times conveyed to said Charles Joel Walter, at his request, much of the real estate comprised in the said demise for the benefit of Charles Joel Walter, and that Charles Joel Walter has since conveyed said real estate so acquired by him to divers persons for value. That in 1886 said Willard, as such trustee, filed his bill in the Superior Court of Cook County against said Charles Joel Walter, Joel C. Walter and others, without question as to mental incapacity or mental disability of said Charles Joel Walter, and asked that he, said Willard, be relieved of his trusteeship. That Charles Joel Walter answered said bill, Anson B. Jenks appearing as his solicitor, and on December 15, 1886, a decree was entered under said bill and answer, accepting the resignation of said Willard and appointing said Jenks as trustee, with like powers as those conferred upon said Willard by the last will and testament of Jerusha Maxwell; that after said decree, said Jenks acted as trustee until 1899, when he filed his bill in the Superior Court, naming said Charles Joel Walter as defendant, without suggestion of mental infirmities or lunacy, and asked to be relieved of his duties as such trustee, to which bill said Charles Joel Walter filed his answer on the same day, and on the 16th day of May, 1899, a decree was entered upon said bill and answer, accepting the resignation of said Jenks and appointing the Northern Trust Company as trustees for the estate and property of Charles Joel Walter, under said will of Jerusha Maxwell, with the same powers, duties and obligations as the trustee originally named under said will.’
    That the Northern Trust Company thereupon assumed to act as this trustee and is now acting as such; that said Charles Joel Walter is wholly sane and capable of contracting and so has been- for upward of twenty years last past.
    The Northern Trust Company answered that it had in its hands, as such trustee, funds amounting to $48,000, and among other things set forth that neither said Willard, nor Jenks, nor respondent, while acting as trustee, were satisfied that Charles Joel Walter was or is competent to take care of said funds or any part thereof, and respondent shows upon information and belief that said Charles Joel Walter is not now competent to take care of such fund, and if the principal or any- part thereof were placed in his hands or subject to lien created by him, the sum would be lost to him and his heirs; and further answering, said that Joel C. Walter, the father of Charles Joel Walter, never directed said trustees or any of them to convey, transfer or set over to the said Charles Joel Walter, any part of said estate now in the hands of said respondent; that said Charles Joel Walter is a married man, with two living children, Mary Ophelia Walter and Howard E. Walter; that the name of his wife is unknown; that the said wife and children are necessary parties, because they are interested in the final disposition of said estate; and respondent prayed the same benefit as if it had demurred to the bill for want of proper parties.
    Thereafter Charles J oel Walter filed his cross-bill, setting up, with the exceptions of the allegations as to the judgment against him, substantially the matters contained in the original bill and prayed that the estate, then in the hands of the Northern Trust Company, as such trustee, be turned over to him. The court upon a hearing dismissed the bill of Charles Joel Walter for want of equity and dismissed the original bill of Charles S. French for want of equity apparent on its face.
    W. J. Lavery, attorney for Charles J. Walter, appellant.
    E. H. Towns, attorney for Charles S. French, appellant.
    Dupes, Judah, Willard & Wolf, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

The contention of appellants is principally, first, that the will of Mrs. Maxwell provides that a peculiar method for the selection of trustees who might succeed to Willard was appointed by her will, and insists that that method has not been followed, and that therefore the Northern Trust Company is no longer authorized to act as trustee; second, that the will of Mrs. Maxwell contemplated that the estate bequeathed to Charles Joel Walter should remain in trust only during such time as he was of unsound mind, and that as he is now entirely compos rnmtis the estate should be turned over to him. A very excellent brief has been submitted by appellants’ attorneys upon the subject of succession in trusteeship.

Granting that Charles Joel Walter is now, and for many years has been of sound mind, and has been so treated and regarded by the various trustees of his estate, it appears that the resignation of the trustee nominated by the will, Alonzo J. Willard, and the appointment of Anson B. Jenks as his successor,,was by the decree of the Superior Court in a proceeding to which the cestui que trust, Charles J. Walter, was a party assenting thereto, and that the subs’quent resignation of Anson B. Jenks and the appointment of the Northern Trust Company as his successor was by virtue of a decree of the Superior Court of Cook County in a proceeding to which Charles Joel Walter was an assenting party. Such changes of trusteeship as have been made having been with the assent of Charles Joel Walter, can not now be complained of by him. The reasons for placing the estate bequeathed to Charles J. Walter in the hands of a trustee are stated in the will. They are not that he was non compos mentis, but.that he had shown indications of not being in his right mind. The testatrix might have placed in trust the estate she gave to him without indicating any reason therefor. The reason given is a mere indication of her opinion as to indications he had shown, and it is not necessary for the purpose of continuing the trust, that it should appear that her judgment was then well founded or has since been shown to have been well taken.

The entire clause — and there is nothing in the will detracting in any way from the force of item 5 — indicated that the testatrix intended to put the estate bequeathed to Charles Joel Walter out of his control during his entire life, unless the trustees of such estate should be satisfied — not that he was sane, free from delusions, of composed and sound mind, but satisfied that said Charles Joel is competent to take care of the same, and not before; unless Joel C. Walter, father of said Charles Joel Walter should direct said trustee so to do. And the will further, by way of effectually placing the bequeathed estate beyond the reach of any act of said Charles Joel Walter, whether sane or insane, provides that he is to have no power to control, dispose of or incumber said share by any act done or suffered by him, until same shall have been actually conveyed to him by said trustee.

Appellants urge that because previous trustees have conveyed to Charles Joel Walter certain real estate held by them, therefore the present trustee must turn over the personal property in his hands. We do not think that this by any means follows. Whether the previous trustees were justified in doing as they did in this regard is not now for our consideration. The turning over of the estate to the cestui que trust is under the will a matter of discretion to be exercised under judgment.

We can well understand that a trustee might turn over a portion of the estate, pieces of real estate, with a view to ascertain by actual trial, the competency of the cestui que trust to manage his property.

The condition of affairs presented in this suit does not seem to indicate that such discretion has been heretofore wisely exercised, as the appellant Charles Joel Walter, for many years, ever since the death of his grandmother, has been in the receipt of a considerable cash income, augmented by addition thereto made under the will of his father, and yet we find him now owing an unsatisfied judgment amounting to over $9,000, which the sheriff of this county has returned, no property found and no part satisfied.

It is true, as is urged by appellants, that ordinarily where things are to be done to the satisfaction of a party, such party is bound to be satisfied when, under the circumstances, all reasonable men would be. We do not think that the trustee has no warrant for thinking the cesind que trust incompetent to take care of his estate,

The decree of the Circuit Court is affirmed.


author: Mr. Justice Shepard

text:
    Levi L. Leach et al. v. Patrick Durkin.
    1. Personal Injuries — Proximate Causes and Questions of Fact.— On the trial of a suit for personal injuries resulting from the fall of a brick from a building in the process of construction, the whole subject of where the brick came from and whether its falling was the result of the carelessness of the defendant's servants, is one which, under the circumstances of this case, was properly submitted to the jury.
    3, Remittitur — Powers of the Court When the Verdict is Excessive.— Where, on an appeal from a judgment for personal injuries, the Appellate Court is of the opinion that such judgment is excessive, it may order that it be affirmed, provided a sum certain is remitted; otherwise that it be reversed and remanded.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed provided a remittitur be entered, otherwise reversed and remanded.
    Opinion filed November 26, 1901.

    Wall & Ross, attorneys for appellants; Percy Werner, of counsel.
    Theodore G-. Case, attorney for appellee.

       Remittitur filed and cause affirmed December 2, 1901.

   Mr. Justice Shepard

delivered the opinion of the court.

This appeal is from a judgment of $2,000, entered on a verdict for that amount, in a suit by appellee to recover for injuries received by him through the alleged negligence of appellants.

The errors mainly relied on for a reversal, are directed to the sufficiency of the evidence to sustain the verdict. The specific act charged by the declaration as constituting the negligence relied upon, is the letting fall of a brick or fragment of a brick from the top of a wall being constructed by appellants, upon the head of the plaintiff, who was working below.

At the time of the accident a power house for the Chicago City Railway Company was in process of construction. It was a large building, about 300 feet long, extending east and west, and two hundred feet wide. Separate contracts for doing the work had been let to various contractors, the carpenter work only being done by the railway company itself. The appellants had the contract for doing the stone and brick-work, and Bishop & Gatlin", for whom appellee worked, h'ad the contract for putting in the boilers and setting their brick foundations.

Bunning through the entire length of the building was a brick firewall, two or three feet thick and forty or fifty feet high, which was nearly completed. Because of the thickness of this wall, and for convenience in putting it up, the method of building the wall was to lay up its north side or face, about three feet at a time, and then from the other or south side, build up the remainder. Ati the time of the accident the face or north side of the wall had been entirely completed to a point to receive the coping, and no masons were any longer working on that side of the wall. They were wholly at work on the south side of the wall, and stood on a scaffold that rested on the roof and was more than ninety feet long.

The twenty-four boilers that Bishop and Catling were putting in, were located in the northwest part of the basement of the building and about three feet from the north side of this firewall. There were four openings or manholes through the wall, through which the workmen about the building could pass from one side of the wall to the other. Burkin was a mortarman. His duties were to mix the mortar and carry it to the workmen who were laying the boiler foundation. The mortar bed or box was situated on the north side of the wall, near the boilers and about ten feet from the wall. The water supply, to mix the mortar with, came from a hydrant or pipe south of the wall and about three feet from it. Durkin passed through one of these manholes to the place where the water faucet was, on the side of the wall, and after turning the water on, started to go back.

Just after getting up from turning on the water, a piece of brick came down from above and struck him on the head inflicting the injuries of which he complains. Durkin did not see where the brick came from. A witness called by Durkin, testified on cross-examination that he was at work tempering mortar with Durkin; that he saw the brick fall and picked it up; that it came down between the wall and the scaffold, on which the briclc-masons were working on top. He then stepped out and hollered up to the masons to stop dropping bricks, that they had killed a man. He also testified he could not say how wide the space was between the scaffold and the wall, but it was wide enough for a brick to easily fall through. He also said he did not see the brick coming down through the air, but onlv after it struck Durkin. Another of Durkin’s witnesses testified on his cross-examination that he saw Durkin just as the brick fell on him; that he saw the mason that dropped the brick let it fall, and that he was working right overhead from where Durkin was when struck. He also testified that no carpenters were working above where Durkin was.

Appellants claim that Durkin was on the north side of the wall, when hurt, and that because no masons were at that time working north of the wall, but only carpenters, the brick must have fallen through the negligence of the carpenters, and not of the masons. Tending to corroborate appellants’ claim in that regard, there was evidence that the roof on the south side of the wall and under the mason’s scaffold was finished, while on the north side of the wall the roof was open and unfinished, and carpenters were at work there taking roof boards across from the south side of the wall to the north side of it. Appellants also contend that none of the masons were at work over the manhole through which Durkin passed, and near which he was hurt.

According to appellants’ own showing the masons were using a scaffold that was more than ninety feet long, and it would seem that this scaffold extended over or very near to a point above where Durkin was hurt. The section of the wall that was being built up at that time, extended from a point about forty feet west of the center of the wall to a point about twenty-five feet east of the center. How much the scaffold reached beyond these points at either end is not made to appear, only that it was “more than ninety feet long.” Appellants’ superintendent testified that he did not know where, within this distance, his men were working at the instant Durkin was hurt. This same witness testified that Durkin could not get hurt at the center door or manhole, because that door “ was protected.” * * * “ It was all covered with timbers.” He also testified he knew where Durkin was hurt, and that “ it was at one of these three doors that was unprotected,” to the east of the center manhole.

Another witness for appellants testified that he was one of the masons on the scaffold and was working nearest to where Durkin was hurt, and was nine feet west of the manhole nearest to the mortar bed; that he saw the brick held up by the man below, as the one that hit Durkin, and that he saw Durkin after he was hurt, walking north from the wall opposite this manhole.

The only manner in which the testimony for appellee that the brick came down between the scaffold and the wall has been contradicted, is by showing that the roof beneath the scaffold was completed. If that roof were finished tight up against the wall, it xvould, it seems, have been an easy matter for appellants to have shown it; but that was not done or attempted. True, the testimony of appellants’ witness xvho was xvorking nearest over xvhere Durkin stood,xvas that he was nine feet xvest of Durkin, but no one saw the brick while it xvas descending, and it xvould be matter for fair inference by the jury xvhether or not a brick falling through the air near to a brick wall might not be deflected nine feet from the perpendicular by hitting against the xvall or some other object. The whole subject of xvhere the brick came from, and whether its falling was the result of the carelessness of appellants’ servants, was one which, under the evidence, was properly submitted to the jury, and the requested instruction to find for the appellants was properly refused. Illinois Central R. R. Co. v. McNicholas, 98 Ill. App. 54.

There xvas not between these parties any relation of master and servant, or of felloxv-servant, nor do the duties that arise out of either of such relationships have any application to the controversy. It is simply the case of the duty xvhich one performing work oxves to another xvho is rightfully on the premises, to exercise ordinary care not to injure him. The case was tried upon this theory by both sides, and has so been presented here. It was for the jury to decide whether, under all the evidence, ordinary care was or was not exercised.

The railway company was sued jointly with the appellants, and after the appellee had announced that he rested his case, the company moved the court to instruct the jury to find the company not guilty, and the appellee’s counsel assented to the motion being allowed. After that was done, appellee asked and obtained leave to call a witness who had just come into the court.

It is claimed it was error for the court to give the peremptory instruction at the conclusion of a part of appellee’s case. It is conceded by counsel for appellants that there was not sufficient evidence on which a verdict could have been sustained against the railway company, but is insisted that appellants’ case was jeopardized by granting the motion at that stage of the trial.

It is usually a matter wholly within the discretion of the trial judge to admit evidence at any time during the progress of a trial. There seems in this case to have been a good reason stated for the calling of this delayed witness after appellee had once formally rested his case. We can not assent to the force of appellants’ argument that giving the peremptory instruction in favor of the railway company at the time it was given, and the denial at the same time of a similar instruction asked in favor of appellants, amounted to such an intimation by the court unfavorable to appellants’ side of the case as to require a setting aside of the verdict. The most that can be said of the action is what is always experienced when a peremptory instruction is given foT one joint defendant and refused to another. Counsel give no authority in support of their contention, and we think none exists. The further contention is that the appellants’ counsel should have been permitted to argue to the jury that the circumstance that appellee consented to the giving of the instruction in favor of the railway company showed an agreement between the railway company and appellee to free the company from liability and to saddle it on appellants. There is no evidence upon which to base such an argument, beyond the mere fact of it being conceded that no sufficient evidence had been elicited to show the liability of the railway company. It would have been competent for appellant to show all the facts that would relieve them from liability, after as well as before the company was out of the case. We think there was no error in the respects mentioned.

It is next claimed the judgment is excessive. The appellee was not hurt very seriously. According to his own testimony he was laid up only about two weeks before beginning work again, and lost only about six months’ time from the time of the accident. His subjective symptoms are that in cold weather his head gets clogged up, and in summer he can not stand out in the heat as much as formerly. We think twelve hundred dollars is ample compensation to him. If, therefore, he shall within ten days, in this court, enter a remittitur of eight hundred dollars from the judgment the judgment will be affirmed for the balance, otherwise it will be reversed and the cause remanded.

Affirmed if remittitur be entered, otherwise reversed and remanded.