author: Mr. Justice Shope

text:
    Charles W. Lasher v. Jefferson Gardner et al.

      Filed at Ottawa May 9, 1888.

    1. Statute of Frauds—of the character of writing required. In certain enumerated cases the statute requires the contract, or some memorandum thereof, to be in writing, signed by the party to be charged, or if the contract is by an agent, his authority must be in writing, signed by the party to be charged; and the contract to be entered into by the agent, or some memorandum, must also be in writing and signed by him.
    2. The statute does not require that the contract itself shall be reduced to writing. It is sufficient if there be a memorandum of the contract in writing, signed by the party to be charged, or by some one by him duly authorized.
    3. No particular form of language is necessary to constitute the memorandum requisite to satisfy the requirements of the statute. An admission in writing of the bargain having been made, although it may not furnish exclusive evidence of the contract, as a final agreement would do, or an offer in writing so stating the proposal that its mere acceptance would fix the terms of the bargain, will, if accepted, satisfy the statute, and the acceptance of the offer in writing, may be shown by parol.
    4. Same—of authority to an agent—whether in compliance with the statute. The owner of certain real estate gave his agent a written authority to contract with the owner of a house for the even exchange of their properties, provided the house should be rented to the latter for a certain specified term of years at a specified annual rental, the rent to be properly secured, leaving the details of the contract to his agent. The agent of the owner of the house saw the holder of this power, and was anxious to close the bargain on the terms named in such power, but he declined to close the contract at that time, and before any contract was made his power was revoked: H'eld, that the written authority to make the exchange was not a contract or memorandum of a contract, within the meaning of the Statute of Frauds.
    5. Contract—whether a contract or only a proposition. A proposition by an owner of land, that-if one negotiating for its purchase by an exchange of other property would make an offer including something in addition to a previous offer which had been made, he would consider the same, does not constitute a contract to sell, even if such further offer is made. By such proposition the owner making it reserves the right to accept, reject or postpone the consideration of such an offer, at his option.

      Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Messrs. Hoyne & Follansbee, for the appellant:
    • The statute does not make a yerbal contract void, in the sense that an illegal contract is, but simply makes it unenforcible, except upon .the production of a writing containing the terms of the contract. Browne on Statute of Frauds, sec. 344.
    The acceptance of an offer by an agent is good. Telegraph Co. v. Railroad, Co. 86 Ill. 246.
    The communication of the acceptance, to the agent of the person making the offer, is sufficient, even though the agent does not make it known to his principal. Waterman on Specific Per. sec. 138.
    The memorandum is not the contract, but evidence of the fact of a verbal contract having been made. It need not state that the contract has been made, or afford any evidence of that fact. An offer or proposal signed by the party making it; is held to be a sufficient memorandum to support an action for a breach of contract afterward made by the verbal acceptance of the offer by him to whom it was made, the fact of such acceptance being provable by parol evidence. Browne on Statute of Frauds, sec. 345 a; Esmay v. Gorton, 18 Ill. 483.
    No particular form of language is necessary in the memorandum. Any writing from which the intention can be gathered will be sufficient, from a deed down to mere hasty notes, •or memoranda in books, papers or letters will suffice. McConnell v. Brillhart, 17 Ill. 354.
    Where the owner wrote on a card, “Will take for the N.W. J, ” etc., “$300 per acre, one-third cash, balance one and two years, eight per cent,” and signed it, and the purchaser, on the same card, wrote, “Tour terms are accepted,” and signed the same, it was held a sufficient memorandum in writing. Cossitt v. Hobbs, 56 Ill. 231.

      Where the owner executed a deed," and sent it to his agent, •and the purchaser went to the agent to close the transaction, but the agent refused to consummate the sale, the deed was held a sufficient memorandum in writing. Wood v. Davis, 82 Ill. 311.
    Where the owner of land gave the purchaser a letter to the •owner’s agent, saying the purchaser had called on him and agreed to take the lot, stating the terms, and concluding, “Make the papers and I will pay your commissions,” the •court held this a sufficient memorandum. Spangler v. Danforth, 65 Ill. 152.
    It has also been held that a paper stating the terms of a contract, and signed by the party to be charged, and addressed to a third person, though it did not, at the time, come to the knowledge of the other party, may be deemed a sufficient mem•orandum, under the statute. Peabody v. Speyers, 56 N. Y. 230.
    Upon the point that the memorandum need not pass between the parties, but may be addressed to a third person, •and that a note addressed by the principal to his agent is sufficient, see Gibson v. Holland, L. R. 1; 1 Benjamin on Sales, par. 231; Kleeman v. Collins, 9 Bush, (Ky.) 460; Moore v. Mountcastle, 61 Mo. 434.
    Mr. Howard Henderson, for the appellees:
    The authorization given by Gardner is not such a memorandum as the statute requires. YanZandt was authorized to make a contract that would be binding, but he never did.
    The statute not only requires the authority of the agent to be in writing, and signed by the party to be charged, but also that the agent shall sign the memorandum of the sale. Albertson v. Ashton, 102 Ill. 50; Chappell v. McKnight, 108 id. .570; Farwell v. Lowther, 18 id. 252.
    A contract can not be partly in writing and partly in parol. Farwell v. Lowther, 18 Ill. 252; Frazier v. Howe, 106 id. 563.
   Mr. Justice Shope

delivered the opinion of the Court:

This was a hill by appellant, to compel specific performance ■ of a contract alleged to have been entered into between appellee Jefferson Gardner, and appellant, for the exchange of certain real estate owned by them, severally, in the city of Chicago. At the filing of the bill, the south fifty feet of th(3Gardner tract had been conveyed to John D. Benedict and J. Wright Gardner, and they, with Jefferson Gardner, were-made defendants. The defendants answered, admitting the-ownership of Jefferson Gardner of the premises in question, but denied the making of the contract, and pleaded the Statute of Frauds. The conveyance to J. Wright Gardner and Benedict was admitted, an'd it was alleged they were purchasers in good, faith and for value. On the hearing, decree was entered dismissing the bill, and the complainant prosecutes this appeal therefrom.

Two questions are presented: First, was there a contract of sale or agreement to convey, as alleged ? And second, if so, is such contract within the Statute of Frauds ? The determination of either of these questions adversely to appellant will be decisive against him, and no discussion of the bona fides of the sale to Benedict and J. Wright Gardner will be necessary.

The facts substantially conceded are: Jefferson Gardner,, who resided at Lansingburg, New York, was the owner of certain acre property in Lake View, a suburb of Chicago, and appellant was the owner of residence property No. 345 La Salleavenue, Chicago. Mr. Knoble, a real estate dealer, representing appellant, called upon Mr. George Van Zandt, who had acted as the agent of Gardner, with a view to learning the price, etc., at which the Gardner property could be purchased. The price asked was $35,000. Appellant declined to purchase,, but proposed an exchange of his house and lot for Gardner’s, land. This proposal, with the result of his examination of the property and a photograph of the house, Van Zandt sent do his principal, who, as YanZandt reported, did■ not seem .averse to considering the proposition. As part of appellant’s proposal, he offered to take a lease of Gardner of the house for dwo years, at $3000 per annum. Van Zandt suggested that if .appellant would make an offer of a five years lease, he thought the trade might he made. This appellant declined to do then. At this point in the negotiation, YanZandt suggested that he was going east in a short time, and would see Mr. Gardner, •and as he thought it a desirable trade, would endeavor to in•duce Mr. Gardner to make it. YanZandt did go east, and saw Gardner, who, he says, seemed favorably disposed, but that his family were not. It was previously understood that if the trade could be made YanZandt would telegraph Knoble, who would then go on, as the agent of Lasher, and close the trade. Van Zandt, finding the matter unfavorable, as he thought, telegraphed Knoble not to come, but Knoble went, notwithstanding, arriving at Lansinghurg in the evening of August 11, and saw Van Zandt, who advised him of the situation, and to attempt nothing until morning. The next forenoon the two agents and Mr. Gardner met at the latter’s house. It is clear, that while Mr. Gardner looked favorably upon the proposal to trade properties, he was not at all anxious, while his family, especially his wife, was hostile to it. Mr. Gardner was then eighty-five years old, and apparently very cautious in his business transactions. Knoble’s offer, then made, was to trade properties even, Mr. Lasher taking a lease on the La Salle avenue property for three years, at $3000 per annum. Some time elapsed in conversation, mostly employed by Knoble in an endeavor to impress on Gardner’s mind the advantage of trading his unproductive Lake View property for property yielding a large present income.

Up to this point there is little or no conflict in the testimony. Knoble testifies that Gardner and Van Zandt had a conference, and in a few minutes returned to the porch where Knoble was, -when Gardner said: “Well, I rather favor the trade, but it’s not enough; if Mr. Lasher will pay $3000 a year for five-years, I will make an even trade of the property;” that after-endeavoring to get Gardner to agree to a less term, without-effect, he said to Gardner: “If this is a positive offer from you to Mr. Lasher, I will go down to the telegraph office and telegraph Lasher;” that he did not wish to do so on uncertainty, and asked: • “Is this a positive proposition?” Gardner replied: “Yes, if Mr. Lasher will accept this proposition, and secure the lease then—secure the lease, we will make the-trade.” These, Knoble says, “are his very words.” Mr. Gardner’s version of what occurred at that interview is, that he declined to accept Knoble’s proposition to trade properties even, Mr. Lasher taking a lease of the La Salle avenue property, at a rental of $3000 per annum, for three years, but said toKnoble, if Mr. Lasher would consent to take a lease for five instead of three years, at a rental of $3000 .per annum, and. give good security for the rent, he would consider the offer. In this, Gardner is corroborated by Van Zandt and by the-attending circumstances. If Knoble understood Gardner to-make an offer, he did not telegraph it to Lasher immediately after this interview. His telegram to Lasher was:

“To George W. Lasher & Son: “8,-12,-’86.
“If a five year lease at $3000 and even trade offered, probably will close trade. Lady against it. Tried best to get for less, but for her. Zandt here. Wire hurry.”

This is entirely consistent with the testimony of Gardner and Van Zandt, but not with that of Knoble. No reasonable-explanation is given why Knoble did not telegraph the fact-that a positive proposition had been made for Lasher’s acceptance. He knew that his principal was desirous of closing the-transaction. The offer of Gardner, testified to by Knoble, required security for the rent. No apparent authority had been given Knoble to contract to give security, yet this important feature of the proposition is entirely omitted from the telegram. It may be, as stated, that he was authorized to contract to secure the rent, but the authority exhibited to Gardner omitted all mention of it. It was as follows :

“Chicago, August 10, 1886.
“Mr. Knoble—Dear Sir—I hereby authorize you to trade my house, 345 La Salle avenue, Chicago, to Mr. Gardner, of Lansingburg, New York, on equal terms, for his property in Gardner’s subdivision of Lake View, bounded by Clark, Wellington and Halsted streets, being three acres, more or less, and I will take a three years’ lease of 345 La Salle avenue, at $3000 per year, payable semi-annually.
q »

Be that, however, as it may, it is clear that immediately after the interview at the house of Gardner, Knoble sent the telegram referred to, and for some reason a reply was not received by him for several hours. About two o’clock P. M., Knoble reporting that no answer had yet been received, VanZandt went to Gardner’s house, and the following instrument in writ- ' ing was executed by Gardner, and delivered to VanZandt:

“Lansingburg, August 12, 1886.
Mr. George VanZandt:
“You are hereby authorized to contract with Mr. Lasher, of Chicago, for the even exchange of block 2 of Gardner & Knocke’s subdivision, for his property, known as No. 345 LaSalle avenue, in Chicago, valued at $35,000, provided that the house is rented to Mr. Lasher for five z years, at a rent of $3000 per year, and that the lease is properly secured, the other details of such contract to be left to your discretion. If the contract can not be made before January 1,1887, this authority is revoked..
Gardner.”

About three o’clock Knoble received the following telegram: “To A. M. Knoble, care Phoenix Hotel:

“Will take five year lease at $3000, if you can not do better. Close the trade for certain, at once. Answer.
G. W. Lasher.”

Upon receiving this, Knoble started for Gardner’s house, met YanZandt, and told him he had received a dispatch from Lasher, and that it was all right. YanZandt exhibited to Knoble his authority in writing from Gardner to make the "trade. Knoble, instead of saying that Gardner’s offer was accepted, or using equivalent language, insisted upon going to Gardner’s house and completing the trade. He could, with the authority exhibited by YanZandt, have notified him of the acceptance of Gardner’s offer, if one had been made. This he did not do. Yan Zandt and Knoble both understood that "the contract of trade was not consummated, for YanZandt then fold Knoble that he must not see Gardner,—that he (Yan-Zandt) had authority to act for Gardner, and would do so when they returned to Chicago; that nothing further could be done "that day; that Gardner’s wife and family were greatly opposed to the trade, and Mr. Gardner would not then act contrary to the wishes of his family, without at least first having -an opportunity to talk it over with them, and if the matter was further pressed then, he would be met with a refusal. Knoble acquiesced in this, YanZandt saying to him he would endeavor to procure the signature of Mrs. Gardner to the paper he held, which, from his influence with the family, he thought he could do.

The contention of appellant, that Gardner made a proposition to trade the property even, appellant taking a five years lease at $3000 per annum, properly secured, and that it was accepted by Lasher, by notifying YanZandt, through Knoble, of its acceptance, is not sustained by the evidence. The preponderance of the evidence shows that Gardner’s proposition was, that he would consider such an offer, if made by Lasher. This would reserve to himself the right to accept, reject or postpone the consideration thereof, at his option. It is equally clear that there was, at no time, an acceptance of any offer made by Knoble. The letter of attorney given by Gardner to YanZandt, and shown Knoble, was a mere authority to act, under which Van Zandt at no time exercised or attempted to •exercise any power whatever.

It is not contended that the letter of attorney to Van Zandt was a contract entered into with Lasher, hut it is said that it is a inemorandum of the contract signed by the parties to be charged. The statute does not require that the contract itself shall be reduced to writing. It is sufficient if there be a memorandum of the contract in writing, signed by the party to be charged, or by some one by him duly authorized. (Cossitt v. Hobbs, 56 Ill. 231; McConnell v. Brillhart, 17 id. 354; Spangler v. Danforth, 65 id. 152; Wood v. Davis, 82 id. 311.) No particular form of language is necessary to constitute the memorandum requisite to satisfy the requirements of the statute. An admission in writing of the bargain having been made, although it may not furnish exclusive evidence of the •contract as a final agreement would do, or an offer in writing so stating the proposal that its mere acceptance would fix the terms of the bargain, will, if accepted, satisfy the statute, and the acceptance of the offer in writing may be shown by parol. Browne on Statute of Frauds, sec. 345 a; Esmay v. Gorton, 18 Ill. 483, and authorities supra; Farwell v. Lowther, 18 id. 252.

The writing, on its face, does not purport to relate to a past transaction, and, in fact, as we have seen, there was no contract made, at the time of its execution, of which it could have been a memorandum. Gardner had made no proposition to trade on the basis mentioned, and-Knoble, had no authority to make or accept an offer to contract on that basis.- It is apparent that it was not regarded by any of the.parties as an offer or proposition by Gardner, and was not so treated by Knoble or Van Zandt. It was shown to Knoble, not as a proposal from Gardner, but as VanZandt’s authority to contract with Lasher for the exchange • of property, and it was understood between them that he would not exercise that authority then, but upon their return to Chicago he would do so. The evidence leaves no doubt that the consideration of the whole-matter was postponed until YanZandt and Enoble’s return to-Chicago. This being so, the minds of the parties never met,, and no contract, as a matter of fact, existed between them. The whole matter was, as we have seen, left in fieri until the-return to Chicago, and the revocation of Yan Zandt’s agency in the interim prevented its consummation.

It is, howeyer, said, that it was agreed by YanZandt, with. Knoble, that upon their return to Chicago they would come to-an understanding in regard to the details, which, by the letter' of attorney, had been left to the discretion of YanZandt, and enter into a contract for the exchange of the properties upon the terms by their principals severally proposed. If it be conceded that such contract was made, and was prevented of consummation by the revocation of Yan Zandt’s authority, it can. not be enforced. The statute requires the contract, or some memorandum thereof, to be in writing, signed by the parties to-be charged, or if the contract is by an agent, his authority must be in writing, signed by the party to be charged, and the contract entered into by the agent, or some memorandum thereof, must also be in writing, and signed by’ him. (Albertson v. Ashton, 102 Ill. 50; Chappell v. McKnight, 108 id. 570.) If, therefore, it be conceded that it was agreed by YanZandt, as-agent of Gardner, that on his return to Chicago he would contract with Lasher for the exchange of these properties upon the general terms mentioned, it can not avail appeEant.

We are of opinion that the decree of the circuit court must-be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Patrick R. Bannon v. H. L. Thayer.

      Filed at Ottawa May 9, 1888.

    1. Parties—proceeding to enforce mechanic’s lien—subsequent mortgagee. After a mechanic’s lien had attached to lots, the owner executed a promissory note, payable to his own order, securing the same by deed of trust on the same property, and indorsed the note to a third person, to secure a loan. D was appointed trustee, and the deed provided that in case of his death or inability to act, E should be trustee in his stead, etc. The holder of the mechanic’s lien brought suit to enforce his lien, making the original owner and the trustee, D, parties, but not the holder of the note, and obtained a decree: Held, that the holder of the mortgage debt, as well as the trustee, was a necessary party, and not being made a party, was not bound by the decree.
    2. Same—where party in interest is unknown. The fact that the holder of the mortgage note was unknown, afforded no sufficient excuse for not making him a party. He should have been made a party by the description of “unknown owner” of the note.
    Appeal from the Appellate Court for the Second District;—‘ heard in that court on appeal from the Circuit Court of. Will county; the Hon. Dorrance Dibell, Judge, presiding.
    Messrs. Haley & O’Donnell, for the appellant.
    Mr. C. W. Brown, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

James Beanly, being the owner of certain lots in Joliet, made a contract with Patrick B. Bannon, on the 20th of April, 1881, to erect certain buildings thereon. Bannon erected the buildings pursuant to the contract. On the 8th of May, 1882, Beanly borrowed money of A. J. Wheeler, and executed his promissory note, payable to his own order, for the amount thereof, and indorsed it in blank, and he and his wife thereupon made a ■deed of trust of the lots in Joliet, to secure the payment of the note, and he then delivered the note and deed of trust to Wheeler. The deed of trust was to George Woodruff, as trustee, but it provided that in the event of his death or inability, ■etc., to act, H. Leroy Thayer should be trustee in his stead, with full power, etc. It was duly recorded in the proper office, ■on the 9th of May, 1882. On the 1st of June, 1882, Beanly was found, by the proper tribunal for that purpose, to be insane, and he was thereafter confined in the insane asylum at Kankakee. On the 17th of June, 1882, Bannon filed in the office of the clerk of the circuit court of Will county his petition for a mechanic’s lien, to enforce payment of the amount due him under his contract with Beanly, making Beanly and George Woodruff defendants. Woodruff died on the 26th of October, 1882, and the suit was thereafter declared to he abated as to him. Thayer was not made a party to the suit, and the only remaining party after the death of Woodruff, was Beanly, who answered by his conservator. Decree was rendered on the 8th of October, 1883, in conformity with the prayer of the petition, and Bannon, afterwards, at a sale under that decree, became a purchaser of the lots. The note held by Wheeler not having been paid, was assigned to Thayer after the petition for the mechanic’s lien was filed, and before final decree thereon was rendered. The present bill is by Thayer, as the holder of the note delivered to Wheeler to foreclose the deed of trust.

Bannon has set up in his answer, and relies for a defence, on the proceedings to enforce the mechanic’s lien. The lower courts held, that neither Thayer nor Wheeler having been made a party to that proceeding, Thayer is unaffected by it, and the only question here is, whether that ruling is right. We held in McGraw et al. v. Bayard et al. 96 Ill. 153, that both the trustee and the cestui que trust are necessary parties in such ■case, and this was predicated upon our previous ruling, to like ■effect, in Scanlan v. Cobb, 85 Ill. 296.

It is objected, that the note described in the trust deed being payable to the order of Beanly, it was impossible to find out. who was the holder, so as to make him a party. But if that had been the fact, the holder should have been made a party by the description of the “unknown owner” of the note. (Rev. Stat. 1874, see. 7, p. 199.) We think, however, that the evidence abundantly shows that Bannon had actual notice of facts-which it was his duty to have investigated, and which, upon investigation, would have disclosed the name of the holder of the note. There is no pretence of excuse for not having made Thayer a defendant in the place of Woodruff, after the death of the latter.

- The judgment of the Appellate Court is, in our opinion, right. It must therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Virginia B. Holmes v. Henry V. Bemis.

      Filed at Ottawa May 9, 1888.

    - 1. Confession of judgment—of the power—whether authorising confession in favor of an assignee. A wife gave her husband her promissory note, payable to him by name, which contained, -in the usual form, a power of attorney to confess judgment thereon in case of default of payment. The power was to any attorney of any court of record to confess a judgment in favor of said H. (the husband) & Bro., or their assigns, upon said note. The husband having assigned the same as collateral security, judgment was confessed in favor of the holder, in his name, as assignee: Held, that the words “& Bro.” would be treated as surplusage, and that the power authorized the confession of the judgment.
    2. The fact that both the payee and his assigns are named in the power, shows that its benefit was intended for the assignee as much as the payee, and such being the case, it was a matter of no consequence whether the holder derived his title mediately or immediately from the payee.
    3. Same—construction of such a power—the rule. Where the retaining of a word in a power to confess a judgment upon a note.would be to render the instrument meaningless, such word may be treated as surplusage. A construction that would render the instrument meaningless, should be avoided, if it can be upon any reasonable hypothesis. The instrument should, if possible, be so construed as to give effect to the presumed intention of the parties.
    Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Superior Court of Cook county; the Hon. J. P. Altg-eld, Judge, presiding.
    Messrs. Roberts, Hutchinson & Thomas, for the appellant:
    The authority to confess a judgment without process must he clear and explicit, and must he strictly pursued. Chase v. Dana, 44 Ill. 262; Bank v. St. John, 5 Hill, 497; Tucker v. Gill, 61 Ill. 236; Keith v. Kellogg, 97 id. 147.
    Messrs. Brady & Northrup, for the appellee:
    The rule of construction should not be so rigid as to defeat the manifest intentions of the parties. The whole instrument should be considered, and the instrument should be supported rather than defeated. Keith v. Kellogg, 97 Ill. 151; 1 Parsons on Contracts, 501, 503; Walker v. Tucker, 70 Ill. 527.
    In determining the intention of the parties, surplusage should be eliminated. Griffith v. Furry, 30 Ill. 253.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On or about the 18th of April, 1885, Avery, Hillabrant & Co. discounted for Ira Holmes his promissory note for $5000, which was guaranteed by Henry Y. Bemis. Of the proceeds of the note, $2101.25 was applied to the payment of an existing indebtedness from Holmes to Avery, Hillabrant & Co., $1648.75 was placed to his credit with them on the joint account of Holmes and Bemis, and the remaining $1250 was paid to Holmes in cash. At the time of this transaction, and as . part of the same, Holmes assigned and turned over to Avery, Hillabrant & Co., as collateral security for the payment of the $5000 note, a certain other note, for the sum of $10,000, which he held on his wife, "Virginia B. Holmes, hearing date April 12, 1885, and payable to himself, one year after date. This note -contained, in the usual form, a power of attorney to confess a judgment thereon in case default was made in its payment. Holmes having made default in the' payment of the $5000 note, the same was paid by the" guarantor, Henry V. Bemis, who, upon such payment, received from Avery, Hillabrant & -Co., for his indemnity, the $10,000 collateral note above mentioned. On the 24th of February, 1887, Bemis caused a judgment by confession to be taken on said note, in the Superior ■Court of Cook county, in his name, as assignee, against the maker, Virginia B. Holmes, for the sum of $12,312.48. A motion was subsequently made by the defendant to vacate and set aside the judgment, which was heard upon affidavits on the 9th of March, 1887. The court denied the motion, but reduced the judgment to $3807.50, which order and judgment were affirmed by the Appellate Court for the First District, whence the case is brought to this court for review.

There is some controversy about the facts, but with that we have nothing to do. So far as this cohrt is concerned, there is but one question presented by the record which we regard as worthy of notice, and that is, whether the confession of the judgment was warranted by the power of attorney in question. While the note itself is made payable to Ira Holmes alone, the power of attorney authorizes any attorney of any court of record to “confess a judgment in favor of the said Holmes é Bro., or their assigns, upon said note,” etc. The judgment, as just seen, was entered in the name of Bemis, assignee of the note, and not in the name of Holmes & Bro., or their assigns. Bemis derived his title through the payee, the only original source through which he could have clothed himself with the legal title and interest in the note, and.it is clear that the benefits of the power were intended as much for the assignee of the note as the payee himself, for both are expressly named in the power. It would seem, therefore, a matter of no consequence whether the holder acquired his title mediately or immediately from the payee. All the difficulty encountered in the construction of the power of attorney arises from adding the words “& Bro.” after the expression “the said Holmes.” Rejecting those words as surplusage, the whole difficulty at once vanishes. To retain them, without resort to extraneous proofs, would be to render that part of the instrument meaningless. A construction which leads to such a result should always be avoided, if it can be upon any reasonable hypothesis.

The instrument, as written, it will be observed, confers, power to confess a judgment in favor of “the said Holmes cfr Bro.” But the difficulty is, that “Holmes & Bro.,” taken in its entirety as- a single name or designation, has not been previously mentioned, and hence the expression “the said,” which precedes and grammatically qualifies it, has really no application to it. Indeed, that is the only time or place the expression .occurs in the whole instrument. The name Holmes, however, had occurred before, and the qualifying expression used would have well applied to it had it been used alone. Moreover, it would have given full force and effect to the power of attorney, as we must presume the parties to it intended. It is clear, therefore, 'that the only purpose or function which the additional words “& Bro.” perform, is to introduce a repugnancy that obscures the sense of the instrument, and if given any effect at all, would defeat it altogether. We regard them, therefore, as redundant, useless words, having no legitimate connection with the other parts of the instrument, and for this reason we hold they should be rejected as surplusage. This construction gives effect to the instrument according to-the presumed intention of the parties. That contended for by appellant would defeat it.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    The Chicago, Milwaukee and St. Paul Railway Company v. Herman Krueger.

      Filed at Ottawa May 9, 1888.

    1. Pbaotioe&emdash;directing what the verdict shall be. If there is evidence-tending to prove the cause of action alleged by the plaintiff, an instruction to find for the defendant is properly refused.
    2. Instbtjctions&emdash;long recital of facts. An instruction containing a. long recital of many facts which the evidence tends to prove, is faulty.
    3. Same&emdash;repeating. Where the instructions given for a party embody the same proposition, substantially, as others asked, there will be no error in refusing the latter.
    Appeal from the Appellate Court for the First District;&emdash;heard in that court on appeal from the Superior Court of Cook county; the Hon. Kibk Hawes, Judge, presiding.
    Mr. E. Walker, for the appellant.
    Mr. B. M. Shaffner, for the appellee.
   Mr. Chief Justice Sheldon

delivered the opinion of the-Court:

This is an appeal from a judgment of affirmance by theAppeUate Court for the First District, of a. judgment for recovery of damages in a suit by Krueger, against the Chicago,. Milwaukee and St. Paul Bailway Company, for a personal injury caused by the alleged negligence of the railroad company.

It appears that Krueger was in the employ of the company, and that his business was to wash passenger cars while standing in the company’s yard; that upon the track in this yard known as No. 1, cars were placed for washing, and that upon track No. 2, cars were switched'from the main track for the-purpose of making up passenger trains. These tracks were twelve feet apart, from rail to rail, and in the centre of such space there were car wheels and axles kept. The wheels had a diameter of thirty-three inches, and were attached to the axles, which lay parallel with the rails of the tracks, and in the centre of this space was a hydrant, to which Krueger was in the habit of attaching his hose while engaged in washing the cars. Cars standing upon the track projected over the rails about two feet, leaving a clear space of two feet and seven inches between the standing car and the wheels. There 'was this space between the car standing upon the track upon which Krueger had been engaged, and the wheel standing in the centre between the tracks, and also the same space or distance between the wheel and any car moving upon track No. 2; but if there were no car so moving, the space would be four feet seven inches between the wheel and the south rail of track No. 2. Krueger was engaged in his regular work upon track 1. He had finished washing a car -standing upon such track, and crossed from track No. 1 to or near track No. 2, and was proceeding westward with the hose on his shoulder, to wash the car standing next to the one that he had just completed, upon the same track, immediately to the west. While either in close proximity to the rail, or between the rails and upon track No. 2, as testified by some witnesses, a car came from the east on track No. 2, striking the plaintiff, and injuring him as alleged in the declaration. The charge of negligence in the declaration is, that the ear was being propelled by its own momentum, without any person having charge of the same, and that no warning was given of the approach of the ear.

The controverted questions of fact as to the negligence of the defendant, and the use of due care by the plaintiff, are settled by the judgment of the Appellate Court, whose decision in such respect is final. It is only the rulings of the court upon questions of law which are open to our review.

The refusal of the trial court to give the first, second and ■eighth instructions asked by the defendant is assigned for error.

The first was a request that the jury be directed to return .a verdict for the defendant. There was evidence in the case •certainly tending to show a cause of action, and this instruction was rightly refused.

The second instruction was faulty, under repeated decisions ■of this court, in containing a long recital of many facts which, •as stated, the evidence tended to prove. But aside from this, the principle of law asked to be given to the jury after such recital, was to the purport, that if the plaintiff, in the discharge ■of his duty, without sufficient cause, negligently and carelessly crossed to track No. 2, and was walking in close proximity thereto when he was injured, he could not recover; and the •eighth refused instruction was of like purport, that if the plaintiff, in the discharge of his duty, was not required to go ' upon said track No. 2, or in close proximity thereto, he could not recover. By the second instruction given for the defendant, the jury were told that if the plaintiff carelessly and negligently passed over to and upon track No. 2, in front of a passing car, .and thereby received the injuries complained of, he could not .■recover; and by the third modified instruction given for the •defendant, the jury were informed that if the plaintiff had, without just reason, put himself in a place of danger, and thereby and therefrom received the injury complained of, the jury should find for the defendant, even though the jury should ■find, from the evidence, that the defendant was guilty of negligence in not placing a switchman upon the approaching car, to give warning to the plaintiff of his danger.

These instructions, which were thus given for the defendant, •embodied, as we consider, the same proposition of law, substantially, that was contained in the refused instructions, and -we therefore find no material error in not giving the latter.

Complaint is made of prejudice on the part of one of the jurors. This complaint is founded entirely upon manifestations of alleged prejudice exhibited by the juror during the progress, of the trial, in his cross-examining of witnesses. However this, may be, we do not find therein ground for reversing the judgment.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    Excy D. Shufeldt v. John Gillilan.

      Filed at Ottawa May 9, 1888.

    Promissory note—condition by separate agreement to become void! upon death of payee—defense as against assignee with notice. A widow who had a life estate in the lands and personal estate of her deceased husband^ the remainder having been devised over by the deceased to his children, made an equal distribution of the estate before her death, taking from each heir a promissory note for the amount of his or her share, payable, in terms, on demand, with six per cent interest, to be paid to her annually, under the agreement that interest thereon should be paid to her as long as she lived, and that the notes should be destroyed at her death. The notes were never actually delivered, but were left with an attorney. Shortly before the death of the widow, she; by some means, obtained possession of one of the notes without the consent of the maker, and indorsed the same to a daughter, who took after maturity with notice of the facts, giving no consideration therefor. After her mother’s death the assigneebrought suit on the note: Held, that the facts stated constitued a defense-to the action.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    Mr. Frank Crosby, and Mr. E. C. Lovell, for the plaintiff in error.
    Messrs. Botsford & Wayne, for the defendant in error.
   Mr. Justice Magruder

delivered the opinion of the Court:

This, is an action of assumpsit brought in the circuit court -of Kane county by plaintiff in error against defendant in error upon the following note:

'“$1885. Algonquin, Ills., December 13, 1877.
“On demand I promise to pay to Dolly Clauson the sum of ■eighteen hundred and eighty-five dollars, ($1885,) with interest at the rate of six per cent per annum, payable annually to the said Dolly Clauson.
John Gillilan.”
which note was indorsed on the back as follows: “Pay to the order of Excy D. Shufeldt, Dolly Clauson.” It is to be -noted that this note does not contain words of negotiability. It is payable to Dolly Clauson and not to the order of Dolly ■Clauson, or to Dolly Clauson or order. Story on Promissory Notes, (7th ed.) secs. 44, 128.

' Jury was waived by agreement and the cause tried by the ■court without a jury. It was stipulated that any evidence might be introduced on the part of the defense, which would be competent under any plea properly framed. The circuit ■court rendered judgment in favor of the defendant below, which .judgment has been affirmed by the Appellate Court. The case is brought here by writ of error.

On December 13, 1877, Dolly Clauson was the widow of Henry Clauson, who died testate, and; by the terms of his -will, dated May 11, 1875, gave and bequeathed to his wife, .Dolly Clauson, to be accepted and received by her in lieu of dower, the use and control of all his estate both personal and ;real during her natural life, and therein directed that, after her death, his real estate should be sold, and the proceeds •thereof, as well as all' the personal estate left at her death, ■ should be equally divided between his children, Floyd Clauson, Henry C. Clauson, Excy D. Shufeldt (the plaintiff in error) .and Belinda Gillilan, wife of defendant in error, who died after -.the death of her father, Henry Clauson.

Defendant in error was administrator with the will annexed, of Henry Clauson’s estate. After the debts were all paid and. the estate was settled, Dolly Clauson made an arrangement-with her children for the division of her husband’s estate in advance of her own death, waiving her right to use and control the property during her life. The real estate was sold for $13,500 and divided among the heirs. What was left of the-personal property after the settlement of the estate was also-divided.

Belinda Gillilan had died leaving three children, who were represented by their father with their consent in the arrangement here set forth. The share of Belinda Gillilan’s children, as heirs of their mother, in the money and personalty to be-divided, was the sum of $1885. It was thereupon agreed between Dolly Clauson and the defendant in error, that the latter-should execute the note, of which a copy is above given, that this note should be placed in the hands of an attorney, named. Young, to be held by him until Dolly Clauson’s death, that-defendant in error should pay the interest according to the-terms of the note to Dolly Clauson, or to Young for her, to. be-used and spent by her for her support, that at her death the note was to be destroyed. Under this arrangement the sum. of $1885 was paid to defendant in error for his children, and he executed the note now sued upon and placed it. in Young’s hands. It is thus evident that there was no actual delivery of' the note to the payee, nor was it understood that there should, ever be any delivery of the note to the payee.

The money belonged to Gillilan’s children or would belong to them at their grandmother’s death. It was paid to their father for them before the time specified in the will, upon condition that he would pay the annual interest upon the amount. This was the method, adopted by all the parties interested, of securing to Mrs. Clauson an income from the money during her life without withholding the principal until her death from those, who would then be entitled to it. Defendant in error was at one time sued upon the note, before the death of Mrs. Clauson, on account of his failure to pay the interest, but, upon his final payment of the interest, the suit was dismissed.

Similar notes were given by the other heirs under the same arrangement and were drawn at the house of plaintiff in error. The plaintiff in error herself gave her note to her mother for her share of the personalty of her father’s estate in accordance with the terms of the same agreement, but paid nothing on it and states that it was surrendered to her by her mother before the latter’s death.

The note for $1885 was obtained from the possession of Young by Mrs. Clauson, through the aid of one of her sons, before her death. It is not necessary to detail the circumstances, under which the note thus passed out of Young’s hands. It is sufficient to s.ay that Mrs. Clauson, having become possessed of the note without consulting the maker and without his consent, indorsed it over and delivered it to her daughter, Mrs. Shufeldt, about three months before she died.

Plaintiff in error paid nothing for the note. She says that it was given to her by her mother. It was overdue when she received it. She knew and had full notice of the circumstances under which it was given by defendant in error, and that the latter was never to be required to pay .the principal to the holder of the note. She was the assignee, without consideration, of the note when overdue and with knowledge of the arrangement, as thus detailed, between the maker and the payee.

The facts here stated were set up as a defense to the suit ■ upon the note. Their existence is fully established by the judgment of the Appellate Court. We think they constituted a good defense, and that the circuit judge very properly gave judgment for the defendant.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    The State National Bank v. James Reilly.

      Filed at Springfield May 9, 1888.

    1. Banks and banking—trust funds on deposit—paying out on checks ■of depositor. Where a bank account is opened between a depositor, as trustee, generally,—-not as a permanent investment, but to be drawn against, —the contract of the bank is, that it will pay out the same on the checks of the depositor, and when such checks are drawn in proper form, the bank is bound to presume they are drawn in the proper discharge of the duty of the trustee, and to honor them accordingly.
    2. Same—bankruptcy funds on deposit—m what manner to be paid ■out—duty and liability of the bank. Under act of Congress and the rule of court, all sums of money received by assignees in bankruptcy, and by the clerk of the United States District Court, were required to be deposited with a certain bank to be named by the court, to be drawn out upon the •checks of the court. The funds so deposited were kept as a unit to the ■credit of the court, and were paid out on checks signed by the clerk and ■countersigned by the judge. The clerk failed to make deposit of all the funds received by him, and the bank paid checks drawn on it until it paid ■out all the funds deposited, but refused to pay other checks drawn, when suit was brought on a check so refused: Held, that the bank was not liable •to the holder of such check.
    3. The bank having properly kept the account of> deposits as a unit with ;and in the name of the district court, as required by the act of Congress •and rule 28 in bankruptcy, and the deposits having been properly withdrawn on checks drawn as required by the statute and the rule, for the benefit of the beneficiaries entitled to share in the common fund, it was .held, that as there was no misappropriation of such funds by the bank, it was not liable for any deficit in the amount due the beneficiaries, arising from the neglect of the clerk to deposit all the trust funds that came to his hands as an officer of the court.
    4. In such case, the bank was not bound to take any notice of any mem■oranda, either on the margin or in the body of any check drawn upon it. Such memoranda are to be regarded as having been made for the convenience •of the drawers. Nor was the bank bound to open a separate account as to -the several cases in which the deposits were made.

      Appeal from the Appellate Court for the Third District;— ¡heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. William B. Welch, Judge, presiding.
    Mr. M. Hay, and Messrs. Greene, Burnett •& Humphrey, dor the appellant:
    The duty of a bank to keep a separate account did not arise from the manner in which the account was kept by the bank, or directed to be kept by the clerk.
    The bank had the right to assume, as it did, that the memoranda accompanying the deposits were for the convenience of the court and its officers, and the right to presume that the court and its officers, in drawing upon the funds deposited, were properly performing their duty in the distribution of the trust fund. National Bank v. Insurance Co. 104 U. S. 54.
    The rules which govern an account kept by a court do not differ from those in other cases. Otis v. Gross, 96 Ill. 612.
    The duty to keep a separate account did not arise from any law of the United States. U. S. Rev. Stat. secs. 5059, 5504, 3642, 3643, 996.
    Messrs. Patton & Hamilton, for the appellee:
    The bank was an officer of the court, and subject to its ■control. In re Fire Ins. Co. 38 Ill. 289.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought by James Beilly, against the State National Bank, on a dividend warrant or check drawn by the clerk of the District Court of the United States for the Southern District of Illinois, on .a fund deposited to the credit of that court by the present clerk and his predecessor, with the •defendant bank, for the sum of $221.17. The check is countersigned by the judge of that court, and is an absolute order to pay that sum of money to plaintiff. It is in the usual form of a hank check, drawn upon the general fund of the drawer, without specifying any particular fund out of which it is payable, and differs from such check only in the fact it has on the face of it some marginal memoranda, and also some in the body of the check, to both of which reference will be made further on. The facts out of which this litigation arises, appear either from the stipulation of parties, or are so fully proven that no controversy exists as to them.

At the trial, defendant submitted several propositions to be held as law applicable to the case, which the court refused, and that ruling of the court is assigned for error. As the first of the series of propositions submitted, if correct, is conclusive of the whole cause, it will not be necessary to notice or comment on the others. It is, “that the law is, upon the facts in evidence, that the plaintiff is not entitled to recover.”

Section 995 of the Revised Statutes of the United States provides : “All moneys paid into any court of the United States, or received by the officers thereof, in any cause pending or adjudicated in such court, shall be forthwith deposited with the treasurer, an assistant, or a designated depositary of the United States, in the name and to the credit of such court.” Conforming to this act of Congress, what is called rule 28 in bankruptcy provides, among other things, that ‘‘the District Court in each district shall designate certain national banks, if there are any within the judicial district, or if there are none, then some other safe depository, in which all moneys received by assignees, or paid into court in the course of any proceedings in bankruptcy, shall be deposited; and every assignee, and the clerk of said court, shall deposit all sums received by them severally, on account of any bankrupt’s estate, in one designated depository, and every clerk shall" make a report to the court, of the funds received by him and of deposits made by him, on the first Monday of every month.” The rule makes it the duty of assignees to make certain reports to registers in bankruptcy, and defines the duty of such registers, and then further declares: “No moneys so deposited shall be drawn from such depository unless upon a check or warrant signed by the clerk of the court, or by an assignee, and countersigned by the judge of the court, or one of the registers designated for that purpose, stating the date, the sum, and the account for which it is drawn.”

There is no doubt it was in compliance with the act of Congress cited, and the rule in bankruptcy on the same subject, that about the 1st of March, 1873, the defendant bank was designated a depository for the “United States District Court for the Southern District of Illinois.” Shortly thereafter, George P. Bowen, since deceased, then clerk of such court, made the first deposit of funds belonging to the registry of the court with the defendant bank, and the bank then, by his direction, opened an account with the “United States District Court for the Southern District of Illinois,” and entered such deposit to the credit of that court. The clerk continued to make deposits of funds belonging to the registry of the court, with the bank, up to the time of his death, which occurred in February, 1880, and the bank continued to enter such deposits to the credit of the court, in the manner directed by the clerk making the same. At first “each deposit so made by the clerk was by the bank entered on its books and in the deposit book of the clerk, to the credit of the particular case, (naming the ease,) with the number, to which the funds so deposited belonged ; that afterwards, by direction of the clerk, all deposits so made were entered by the bank in the name of ‘the United States District Court for the Southern District of Elinois/ dropping the name but retaining the number of the ease,”— as, for example: “1876, January 21, to Dep. 1637, $5200.” It is admitted the bank understood, when these entries were made, the number on either side of the account referred to-the case in which the deposit, in the first place, was made, and on which the check, in the second place, was drawn. The evidence shows,—and, indeed, the admission goes that far,— that the hank always treated the account as an entirety, and paid out of it all checks drawn by the clerk and countersigned by the judge, until the deposits were exhausted. This mode of keeping the account and making payments out of it seems to have been acquiesced in by the court and its principal officer, (the clerk,) under whose direction the deposits were made, for it is admitted that between the time of the first deposit, in March, 1873, and the death of Bowen, in 1880, the bank balanced the account with the court nine different times, returning all checks to the clerk at each balancing, and entering the case number and amount of each check so returned, in the depositor’s book. That is the usual course when a depositor draws on his fund in bank as an" entirety, and had this not been in conformity with the act of Congress and rule 28 in bankruptcy on the same subject, it is hardly probable the court would have permitted its account to be kept in that way, and payments to be made out of it, as was done through so many years, without interposing some objections or requiring it to be kept otherwise. It does not appear any objection was ever made to that mode of treating the account, and it seems but reasonable to conclude it was satisfactory to the court.

The check in suit was given to plaintiff for a dividend due him from the bankrupt estate of H. Sanford. & Co. The case was numbered 2105. Prior to his death, Bowen had made large deposits with defendant of funds derived from that estate, and after his death, his successor in office made quite large deposits of funds received from the same estate, in precisely the same way Bowen had been accustomed to do. It appears that of the funds deposited as having been received in case No. 2105, after deducting all checks drawn for dividends in that particular case,, including the check in suit, there would remain a considerable balance to the credit of that case, if the same had not previously been paid out on checks drawn by the clerk, and countersigned by the judge of the court. The difficulty arises out of the admitted fact that the former clerk failed to deposit all the funds that came to his hands belonging to the registry of the court. Had he done so, there would, of course, have been enough in the bank with which to pay all checks drawn upon the funds of the court. Payment of the-check in suit was refused, because the bank, prior to its date, which is May 12, 1881, had actually paid out on checks similar to this one, signed by the clerk and countersigned by the-judge, and differing as to the number of the ease, names, dates- and amounts, all funds ever deposited with it to the credit of the court, either by Bowen or his successor in office. >

The principle on which plaintiff seeks to recover is, that the bank had notice, by the manner of receiving and keeping the account, and the form of the checks, that the moneys deposited as having been received from No. 2105 could only be paid to persons presenting checks containing that number, and that making payments otherwise was a misappropriation of such funds in its possession. The position assumed does not, in the opinion of this court, seem to be warranted either by the facts or the law. That the deposits made by the respective clerks of the court were trust funds, and were-known to the bank to be such at the time the deposits were made, will be conceded, and taken for granted in all the further consideration of the case. It then becomes a question of law what duty the bank owed to the beneficiaries in regard to such funds. A depositary of trust funds, whether a corporation or an individual, may not divert such funds from the beneficiaries for private debts, or otherwise, and the beneficiaries could no doubt compel such trustee to preserve such funds for their benefit. The law in respect to the duties of trustees in regard to trust funds committed to them, is so well understood, no discussion of that branch of the law is deemed necessary. It is proper, however, to bear constantly in mind the fact the depositary or trustee in this instance is a banking corporation, and that the trust funds were placed in its custody for the purpose of being checked out by the depositor for the use of the beneficiaries entitled to the same. The law on this branch of the case is well expressed in the opinion of the court in National Bank v. Insurance Co. 104 U. S. 54, where it is said: “A bank account, it is true, even when it is a trust fund, and designated as such by being kept in the name of the depositor as trustee, differs from other trust funds which are permanently invested for the sake of being held as such, for a bank account is made to be checked against, and represents a series of current transactions. The contract between the bank and the depositor is, that the former will pay according to the checks of the latter, and when drawn in proper form the bank is bound to presume that the trustee is in the course of lawfully performing his duty, and to honor them accordingly.” Certainly a bank may properly make payments on checks of the person whose deposits it holds, until notice of some adverse claim,—otherwise there would be no safety for corporations transacting a banking business with its customers. Applying these familiar principles, which accord with the common understanding of the manner in which-banking business is usually transacted, the case in hand will present no serious difficulty.

It will be seen the account was kept by the bank in exact conformity with the act of Congress, section 995, ut swpra,— that is, it was kept as a unit in the name of the court, requiring funds coming under its control to be deposited. No one can insist, with any show of reason, that this section of the United States statutes made it the duty of the court to cause its depositary to keep a separate account with each case pending or that had been adjusted, from which the deposits may have been received by the court or its officer. That is the appropriate work of the officers of the court, under its direct supervision. All the statute requires of the depositary is, that it safely keep all trust funds intrusted to its custody by the court or its officers, and pay out the same on the checks or order of the court, through its proper officers. Further than that the statute imposes no duty or obligation upon these designated depositaries of the funds being administered under the direction of the United States courts. Nor is it correct to say that rule 28 in bankruptcy has enlarged the duties imposed by the act of Congress upon the depositary in this case, or placed it under different or other obligations in respect to the keeping of the account of funds intrusted to it by the court under whose appointment it was acting. This rule was no doubt adopted, with the view to point out more specifically the duties of certain officers of the court in respect to funds belonging to or in the custody of the court; but when subjected to a close study, it will be seen it adds nothing of any value to the statute on the same subject.

As has been seen, the act of Congress requires that all moneys paid into any court of the United States, or received by the officers thereof, to be forthwith deposited in a designated depository of the United States, “in the name and to the credit of the court.” Rule 28 requires the same thing in regard to such funds, and nothing more. The insistence in argument seems to be, the phrase in rule 28 that “every assignee, and the clerk of said court, shall deposit all sums received hy them severally, on account of any bankrupt’s estate, in one designated depository,” requires that the account in the bank should be kept with each bankrupt estate, and not as a unit with the court. This does not seem to be a correct reading of the rule. It might be suggested the word “severally,” as used in that connection, is not happily selected. Its meaning, as usually defined, is “distinctly,” “separately,” “apart from others.” Understanding the word severally in either senseihow are assignees and clerks to make deposits of funds coming to them in their official capacity? Obviously, it was to be done “separately” and “apart from others.” What the rule really means is, that “every assignee, and the clerk,” shall deposit all sums received by them, respectively, on account of any bankrupt’s estate, in one designated depository. That is its plain meaning, and nothing more. It will be noted, also, that rule 28 directs how and in what manner such trust funds, may be withdrawn from such designated depositories. In that respect, while it is a little fuller, perhaps, it follows closely section 996 of the Revised Statutes of the United States on the same subject, but makes no material change in the mode or manner of withdrawing such funds.

Holding, then, as this court does, that the account was. properly kept as a unit with and in the name of the “District. Court of the United States for the Southern District of Illinois,” in conformity with the act of Congress and rule 28 in bankruptcy, and that it was properly withdrawn on checks-drawn as directed by the statute, and the same rule, for the-benefit of beneficiaries entitled to share in the common funds,, there was no misappropriation of such funds by the bank, and there is and can be no liability upon, the bank for any deficit, in the amount due such beneficiaries, arising from the wrongful conduct of the former clerk in omitting to deposit all the trust funds that came to his hands as an officer of the court.

This view would seem to be conclusive of the whole case,, and to render further discussion unnecessary; but as great, stress is laid on the fact certain memoranda appear on the face of all checks drawn against the funds in the hands of- the bank, that phase of the case will briefly be remarked upon.’ Over the check was written or printed: “In the District Court of the United States for the Southern District of Illinois,” “Check number 53,” “Case No. 2105,” “In the matter of H. Sanford & Company, Bankrupts.” In the body of the check it is said, the sum directed to be paid to plaintiff “being in full for the dividend of’ seven-tenths per cent declared April! 30, 1881, on his claim for $31,380 proved against said bankrupt’s estate.” No doubt the check was drawn in this form for the reason the statute requires that “every such order shall! state the cause in or on account of which it is drawn.” Rule-28 in substance requires the same thing. It can not be known certainly why it was made necessary every such order should! contain these things or this particular information. Many' reasons might he suggested why it should be so. First, it was an assurance from the court to the bank that the trust funds-in its custody were being withdrawn for the Ose of beneficiaries, and were therefore not being misappropriated; second, it might-be of advantage to the court and its officers in making up the accounts with each estate in bankruptcy pending or that had been adjudicated in the court; and third, it would be a con-venient mode of obtaining vouchers from the parties receiving: dividends, that would operate as a protection to1 the officers-making such payments. What reason may have existed for" so providing by statute and by rule, matters little. It is only" important it is declared the check or order" for withdrawing, such fund shall contain the things enumerated.- Without looking for. a reason why it is so, the only concern is what suchmemoranda indicated, or what obligation, if any, there was-thereby imposed upon the bank. Beyond What has already" been said, that it was an assurance from the court itself, the1 funds were being withdrawn for a legitimate purpose, it is not-perceived the memoranda, either on the margin or in the body" of the check, contained anything for the guidance or information of the bank in any manner whatever,- nor" was the bank-under any legal duty to observe such memoranda.- The bank-could not know, nor was it important it should know, that-“H. Sanford & Company” were the bankrupts whose estate was being administered in “case No. 2105,” nor that the payee1 of the check was a creditor of such bankrupts, nor that the1 sum ordered to be paid him was in full of a dividend deelaredat a certain date, and was a certain per cent of his claim allowed against the estate of such bankrupts. These were1 matters exclusively within the knowledge of the court and its officers, and with which the bank had no rightful authority to intermeddle. It is well known, and the testimony is full to that point, the practice among banks paying checks of their depositors is not to observe memoranda upon such checks, but the custom is to regard them as having been made for the convenience of the drawers, and the practice in that regard, it is thought, has the sanction of law in its support.

The judgments of the Appellate and circuit courts will be reversed, and the cause remanded to the circuit court.

Judgment reversed.


text:
    John Taylor Davies v. John A. Atkinson et al.

      Filed at Ottawa May 9, 1888.

    1. Eabtnebship—payment of individual debts out of pa/rtnership funds—recovery back by the other partners. Where an individual creditor of a partner knowingly receives payment of his claim out of the partnership funds, it is per se a misappropriation of the assets of the firm to that extent, and it may be recovered back for partnership purposes.
    2'. But when such payment is made with the consent, express or implied, of the other partners, the latter will have no right to recover the money back to satisfy any demand they may have against the firm.
    3. Sake—conditions to recovery back as to money so misapplied. Even in case money so misapplied in payment of individual debts may be recovered back in the names of the other partners, or in the name of the firm, for the use of firm creditors, a suit in equity can not be maintained for such purpose without showing-the insolvency of the firm, and that the money sought to be recovered is necessary for the payment of firm debts.
    4. And on bill by one partner to recover back payments made by the other of his individual debts from the partnership funds, it should be shown that such payments exceeded the sum the latter was entitled to draw from the firm on his own account.
    5. Same—of notice to the individual creditor—that he will be required to refund. If a partner misappropriates the firm assets by the payment of his individual debts, without the knowledge of the other partners, it is their duty, upon learning the fact, to notify the persons so paid of their intention to hold them liable, so as to enable them to take steps to secure themselves. A delay of nearly two years to take steps to collect such payments of the individual creditors so paid, is unreasonable.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Egbebt Jamieson, Judge, presiding.
    Messrs. Smith & Pence, for the appellant:
    When an individual creditor receives his pay out of partnership funds, knowing them to be such, he must refund. A subsequent positive ratification will alone relieve him of such liability. Story on Partnership, secs. 131-133; 2 Kent’s Com. 42, 43; 1 Am. Lead. Cas. 507; Rodgers v. Batchelor, 12 Pet. 221; Ensworth v. Everingham, 7 Wend. 326; Brewster v. Mott, 4 Scam. 378; Gray v. Ward, 18 Ill. 32; McNair v. Platt, 46 id. 211; National Bank v. Hyde Park, 101 id. 595; Bodenham v. Hoskyns, 13 Eng. L. and Eq. 222; Collyer on Partnership, secs. 500, 501.
    Mere delay, short of the Statute of Limitations, is not sufficient to bar the right. Gibbons v. Hoag, 95 Ill. 69; Hefner v. Vandolah, 57 id. 520.
    It is essential that laches should be a bar, that the other •side should be acting in ignorance of the real condition of his title, and in the supposition that he was rightful in his ■own dealing. 2 Pomeroy’s Eq. Jur. sec. 818, and notes; Kerr on Fraud, 133, 188; Renie v. Young, 2 DeG. & J. 136; Kinney v. Brawn, 3 Ridg. 518; McCormick v. McMurtie, 4 Watts, 192.

      Laches can only be invoked when the party claiming has been guilty of such gross negligence as to amount to a constructive fraud. Brant v. Virginia Coal Co. 93 U. S. 326; Henshaw v. Bissell, 18 Wall. 255; Bigelow on Fraud, 440.
    A covenant not to sue, such as this, is not a release of the individual debtors of Atkinson. Parmelee v. Lawrence, 44 Ill. 405; Lumberman’s Ins. Co. v. Preble, 50 id. 335; Mueller v. Dobschuetz, 89 id. 176.

      Mr. William Garnett, Jr., for the appellees Logan & Dunn
    There was authority, both express and implied, and ratification, whereby Atkinson was authorized to use firm checks. in payment of his debts.
    Mere delay will bar such a suit. Marine Co. v. Conner, 42 Ill. 66; Dobbs v. Halsey, 16 Johns. 39; Reynolds v. Kenyon,. 43 Barb. 585; Casey v. Carver, 42 Ill. 225.
    Mr. H. S. Mqnroe, for the appellee Sherwin.
    Messrs. Bisbee, Ahrens & Decker, for the other appellees
    Appellant did not show, by competent evidence, that at the-time of the trial there were creditors whose claims remained. unpaid, or that the firm was insolvent.
    The failure of appellant, after notice to repudiate the acts-of Atkinson, and notify the appellees of that fact, is a bar to* a recovery. Marine Co. v. Carver, 42 Ill. 66; Bennley v. Rice, 18 Texas, 481; Corbin v. McChesney, 26 Ill. 231; Perry v. Bank, 14 Ga. 699; McNiel v. Reynolds, 9 Ala. 313; Todd v. Lorah, 75 Pa. 196; Ferguson v. Gordon, 1 Sneed, 254.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 20th day of July, 1880, the appellant, John T. Davies,, of Liverpool, England, and the appellee John A. Atkinson, of Chicago, Illinois, entered into a written agreement to become-co-partners together, under the firm name of Davies, Atkinson. & Co., “in the business of buying hogs and hog products, and. curing, packing and shipping the same to J. T. Davies & Co.,, of Liverpool, England, for sale, on account of the firm of Davies, Atkinson & Co., on commission;” also, for buying-provisions, on commission, for shipment to the continent of Europe, and elsewhere. The partnership business was to be* conducted at Chicago, where the same business had previously-been carried on between Davies and Isaac Atkinson, the father of Atkinson, lately deceased. The business was to continue indefinitely, at the will of the parties, and until determined as :in the agreement provided. By the third article of the agreement it is provided as follows:

“ Third—It is expressly agreed, that during the existence of the said co-partnership, the said John Arthur Atkinson shall ■draw from the said firm a sum not exceeding twenty-five hundred ($2500) dollars half-yearly, and that all sums so drawn by him shall be charged against his share of the profits in said ■concern. It is also agreed, that during the existence of said •co-partnership the said Atkinson shall not buy, sell, speculate with or mortgage any firm assets, except as required in the ■ordinary co-partnership business, and that the said Atkinson shall not engage in any speculations or business ventures on his own account, outside of the business of the said firm, and shall not sign or indorse any notes, bonds or obligations for ■other parties, either as security or otherwise, or in any manner become surety for any person or persons whomsoever, without ihe consent of said John T. Davies.”

The partnership continued from the date of the articles until the 4th day of October, 1884, when it was formally dissolved. The business during this time was conducted mainly under the personal supervision of Atkinson, the complainant being in Europe much of the time.

On the 21st of October, 1884, Davies filed in the Superior •Court of Cook county the original bill in this case, making Atkinson, alone, defendant, charging him with gambling upon the Chicago Board of Trade, in violation of the articles of partnership, and with misappropriating the partnership funds to pay individual losses thus incurred, amounting, in the aggregate, to $200,000. The bill prayed for the appointment •of a receiver, an accounting, and a settlement of the partnership affairs. The day after the filing of the bill, Atkinson entered his appearance, and filed an answer, wherein it was admitted that he had speculated on the board of trade on his own account, and drawn checks on the partnership funds in • payment of his individual losses, in favor of the various persons mentioned in the bill, to the amount of $27,012.50, hut. it is charged that those transactions were legitimate, and according to the custom and usages of the board of trade, and that the various checks drawn by him in payment of his losses, were charged up to him on the partnership books. The checks in question were drawn in favor of, and were paid to, appellees, other than Atkinson.

On the 23d of October the court made an order appointing Bobert Y. Hobden receiver, who made an inventory of the visible assets of the firm, which amounted in value to $45,006.45, and were subsequently sold by him for that sum. On the same-day Davies brought an action of account against Atkinson, on the law side of the court, respecting the same partnership-dealings involved in the chancery suit. On the 26th of January, 1885, the court, on the application of the'complainant, entered an order in the chancery suit, staying the same so far as it sought an accounting, leaving that matter to be settled in the action at law. The suit was continued, however, for the-purpose of collecting and disbursing the assets among the creditors of the firm. On the 15th of May, 1886, the complainant, filed an amended supplemental bill, making the present appellees defendants thereto, wherein it is sought to charge them as payees and recipients of the proceeds of the checks drawn hy Atkinson on the partnership funds to pay his individual losses on the hoard of trade, as heretofore stated. Three days after the filing of this bill, Davies and Atkinson, without, any account having ever been taken showing the state of the-account between thémselves respecting their partnership dealings, came to a settlement as between themselves, whereby Davies acquitted and discharged Atkinson of all liability to-himself on account of or growing out of the co-partnership, but reserved the right to make whatever he could out of any other persons that might, on any account or in any manner, be liable to the firm.

The appellees other than Atkinson answered the amended supplemental hill, denying the equities thereof, and alleging that Davies had knowledge of the manner in which Atkinson conducted the business of the firm; that he knew that Atkinson kept no individual hank account; that he was speculating on the hoard of trade, and paid losses by checks on the partnership funds, as is admitted to have been done. It was further answered, that there had been a compromise and full settlement between Atkinson and complainant, by which the former was released and discharged from accounting to Davies respecting their partnership dealings, and from all liability on account of the firm debts, as above stated.

On the hearing, the Superior Court found the equities with the defendants, and entered a decree dismissing the bill, which, on appeal, was affirmed by the Appellate Court, whence the record is brought here for review.

While we think the general theory upon which the amended hill was drawn, is, as matter of law, correct, and that such a bill, under certain circumstances, might well be maintained, yet we. are clearly of opinion that the evidence fails to sustain the present bill. The principle is well recognized, that where the individual creditor of a partner knowingly receives payment of his claim out of the partnership funds, it is, per se, a misappropriation of the assets of the firm to that extent, and it may he recovered back to answer partnership purposes. But it is equally clear, that where such payment is made with the consent, express or implied, of the other partners, the latter would have no right to recover the money back, to satisfy any demand they might have against the firm. And even conceding it might be recovered in their names, or in the name of the firm, for the use of the firm creditors, it is manifest that a suit in equity could not be maintained for such purpose without showing the insolvency of the firm, and that the money sought to be recovered was necessary for the payment of firm debts.

We think, outside of the positive testimony of Atkinson to ■that effect, that all the circumstances tend strongly to show that Davies knew how the business of the firm was being conducted, and the manner in which the books were kept. The . amount of the checks in. question was all charged up to Atkinson on his individual account, and it would be taxing credulity ¡beyond all reason to suppose a successful, active business man like Davies would have allowed that system of business to go .on for-four years without knowing something about it. It is ■true, Davies swears that he knew nothing about it until the ■time of the dissolution, in 1884; yet the weight of the evidence is against him on this question. But suppose he is right in this matter, we are, on other grounds, still of the opinion the Taw is with the appellees. Conceding appellant knew nothing ..about Atkinson’s misappropriation of the partnership funds -at the time it was going on, and learned of it first about the •time of the dissolution, what was his duty if it were his intention to hold appellees responsible for the proceeds of the checks in question? Unquestionably, he should have notified them of : such intention, so that they could have taken immediate steps -to save themselves, out of any individual estate that Atkinson -.might then have had. But this was not done. Instead of •telling them what they might expect, he remained silent from the 4th of October, 1884, (the date of dissolution,) till the 15th ,of May, 1886. Four days after this, upon the settlement between Atkinson and Davies, as heretofore stated, Atkinson and wife released and conveyed to Davies all their interest in the .estate of Isaac Atkinson, deceased. As there never was any .investigation as to how the actual account stood between these ¡ ■parties, it is not positively certain but what, as between themselves, Atkinson was entitled to the full amount of money. . drawn out on the checks; yet the probability is, of course, the . other way. In any event, we think appellant’s delay in proceeding against the appellees, even upon his own statements, xwas unreasonable.

Outside of all this, it is an undisputed fact, shown by the ¡articles of partnership themselves, that Atkinson was authorized to draw upon the partnership funds, on his individual ¡account, to the extent of $5000 per annum, which, for the period covered by the partnership, amounted to over $20,000. This, taken in connection with the further fact that whenever Atkinson made anything in his speculations on the board of "trade, which he swears frequently occurred, he turned it into the partnership fund and credited himself with the amount, «o that it is not clear but what these sums, when added to the amount he was authorized to draw out, will fully cover the -checks in question. Be this as it may, we are clearly of opinion that the evidence fails to make out such a ease as warranted the relief sought.

Being fully satisfied with the conclusion reached by the lower ■courts, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    Frederick Kammann v. The People of the State of Illinois.

      Filed at Ottawa May 9, 1888.

    Sale op intoxicating liquor—to one al/read/y intoxicated—of the proof. On the trial of one upon the charge of having sold liquor to a person while in a state of intoxication, it is not necessary for the prosecution to show that the buyer was drunk at the very moment of the sale to him. It is sufficient to show that shortly before the sale he was so drunk that he ■could not “walk nor talk straight.”
    Writ op Error to the Appellate Court for the Second District ;—heard in that court on appeal from the County Court ■of Kankakee county; the Hon. Thomas S. Sawyer, Judge, presiding.

      Messrs. Barnum, Rubens & Ames, for the plaintiff in error.
    Mr. H. L. Richardson, States Attorney, for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The plaintiff in error, Frederick Kammann, was tried in the county court of Kankakee county on an indictment charging him with selling intoxicating liquor to one Taylor Hatfield, while in a state of intoxication. The jury found him guilty, and the court assessed his fine at $40, and rendered judgment accordingly. The judgment was subsequently affirmed by the Appellate Court for the Second District, whence the case is brought here for ‘review.

It is first objected, that there is no evidence to support the conviction. In view of all the evidence, we think the jury were warranted in finding the defendant guilty. The proof is clear that Hatfield went into the defendant’s saloon on the evening of the alleged sale and called for whisky; that the defendant thereupon set a bottle out on the counter, from which Hatfield poured out a portion of its contents, drank it, and paid for it. It further appears, that some time before that, on the same evening, Hatfield was seen on the street so drunk that “he could not walk straight nor talk straight.” The only point made on this testimony is, that it does not expressly appear that Hatfield was drunk at the very moment of the sale of the whisky. This we think might fairly be inferred from the facts-sworn to, about which there is no controversy.

The only remaining objection urged is, that the court erred in submitting the case to the jury upon an instruction, for the reason, as is alleged, there was no evidence upon which to base it. This is but a repetition, in another form, of the objection already considered.

No sufficient reason is perceived for disturbing the judgment of the Appellate Court, and it will therefore be affirmed.

Judgment affirmed.


text:
    William B. Dickison et al. v. Margaret Dickison.

      Filed at Ottawa May 9, 1888.

    1. Service of process'—recital in decree—presumption. A recital in a decretal order on a bill for dower, that it appeared “to the court that the defendants were each duly served with process more than ten days prior to the commencement of the May term, 1886, to which term said cause was made returnable,” etc., is prima facie evidence of the service of process. But this presumption may be rebutted by other portions of the record.
    2. Where a decree was taken at the return term, finding there was due service of process on all the defendants, but the sheriff's return on the summons showed a service on certain named defendants, and that two of the defendants were not found, and as to all the rest, being the minor defendants, there was no return: Held, that the sheriff’s return to the writ rebutted the presumption of service arising from the recital in the decree.
    3. In such case, it was urged that the court should presume the infant defendants resided in a different county, and were there served. . The summons issued to the sheriff of the county in which the suit was brought, contained the names of all the defendants, and this was held indicative that they all resided in that county, and hence there was no room for the presumption of service in another county.

      i. Same—appearance by guardian for Ms ward—only upon due service. Notwithstanding the change in the statute authorizing and making it the duty of a guardian to “appear for and represent his ward in all legal suits, ” the guardian has no power to enter the appearance of his ward in a suit against the latter, when he has not been served with process. The power to appear is confined to cases where the ward is in court, by the service of process upon him.
    Writ of Error to the Circuit Court of Peoria county; the Hon. T. M. Shaw, Judge,-presiding.
    Messrs. Wells & Keithley, for the plaintiffs in error:
    The sheriff’s return shows that there was no service upon the minor defendants, and this overcomes the presumption of service- arising from the recital of service in the decree. Fell v. Young, 63 Ill. 106; Botsford v. O'Conner, 57 id. 72; Bar

      nett v. Wolf, 70 id. 76; Hickenbotham v. Blackledge, 54 id. 316; Greenman v. Harvey, 53 id. 386; McDaniel v. Correll, 19 id. 227.
    Messrs. McCulloch & McCulloch, for the defendant in error:
    When the record fails to show any service at all, and there is room to presume that another summons had been issued, the presumption is still in favor of the finding.
    The action being local, summons might issue to any county where any of the defendants resided. There is nothing to show this was not the case, and a service had in some other county. Rev. Stat. chap. 41, sees. 20, 26; chap. 22, sec. 8.
    It will be presumed there was service, and that the summons has been lost. Miller v. Handy, 40 Ill. 448; Mulvey v. Gibbons, 87 id. 367; Chicago Dock and Canal Co. v. Kinzie, 93 id. 410.
    Under the present legislation a guardian may enter the appearance of his ward. Dodge v. Cole, 97 Ill. 338; Allman v. Taylor, 101 id. 185; Clark v. Burnside, 15 id. 62; Rev. Stat. chap. 41, secs. 19, 21; chap. 64, sec. 18.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

Margaret Dickison, defendant in error, filed her bill in the circuit court of Peoria county, for dower in the lands of Griffith Dickison, deceased. The biH alleged her marriage with said Griffith Dickison in 1859; that she filed her bill for divorce from him in November, 1861, and a decree in her favor for divorce was entered in 1867, for abandonment of said Margaret by said Griffith, and that said Griffith Dickison died March 12, 1886, leaving a will. The devisees and their descendants were made defendants in the bill for dower. The court entered a decree for dower. The plaintiffs in error bring the record here, and ask a reversal of the decree.

The decree must be reversed for the want of service of process upon a part of the defendants below, and of the plaintiffs in error, they being minors. Olive, George, Fannie, Laura A. and Daisy Dickison, minor children of Griffith A. Dickison, one of the devisees in the will of Griffith Dickison, of a portion of the lands in which dower is claimed, were not served with process. The summons was issued on April 20, 1886, directed to the sheriff of Peoria county, and returnable to the next May term of the circuit court of Peoria county on the first Monday of May then next. The names of the above named minors as defendants were included in the summons. The sheriff’s return on the writ, dated April 23, 1886, shows service on certain named of the defendants, and that two of the defendants were not found in his county, and as to all the rest of the defendants, being these minor defendants, the return is utterly silent. The decretal order recites: “And it appearing to the court that the defendants were each duly served with process more than ten days prior to the commencement of the May term, A. D. 1886, to which term said cause was commenced,” etc. Although this recital is prima facie evidence of service of process, yet, as has frequently been held, this presumption from such finding may be rebutted by other portions of the record, and in the present case it is rebutted, by the sheriff’s return to the writ. }

In Botsford v. O'Conner, 57 Ill. 78, it was said: “The service appearing in the record was defective in not showing the manner in which it was made, and as parol evidence could not rightfully be heard to aid it, we can not presume the court acted on other evidence than the return. It therefore rebuts the finding that there was service.” And see Barnett v. Wolf, 70 Ill. 76.

As we have repeatedly held that the finding by the court of due service of process will not be rebutted by a defective service of process to the return term, where there has been a 0 continuance to a subsequent term, but in support of such presumption, we would presume that an alias summons to the subsequent term had been taken out and duly served, although such an alias writ might not appear upon the files,—so here, it is urged that there should be, in support of the finding of the court, an indulgence of the presumption that these minor defendants resided in some other county, and that there had been the issuance of a summons to such county for them, and due service upon them there. The statute provides, in such case as this, the petition may be filed in the county where the estate, or some part thereof, is situated. (Rev. Stat. chap. 41, sec. 20.) There is no room here for the presumption asked. What grounds for presumption appear are for a contrary presumption. The summons to Peoria county, including in it the names of all the defendants, is indicative that all the defendants resided in that county. As the sheriff of Peoria county returns as to two named defendants that they are not found in his county, if these minor defendants did not reside in his county, there would, presumably, have been the same return as to them. In the ease of the presumption of an alias summons to a subsequent term, there is room for it in the fact of a continuance to a subsequent term.

At the May term, 1886, of the court, Anna Dickison presented her petition, representing that on April 27, 1886, she was apjiointed guardian of these minor defendants, producing her letters of guardianship, and asking that she might be appointed guardian acl litem of said minors, and that she might appear and make their defence for them; and the court thereupon, finding that she had been appointed such guardian, ordered that she be appointed guardian ad litem of such minors, to prepare and make their defence for them, which she accordingly did. In Greenman v. Harvey, 53 Ill. 387, where an infant defendant had not been served with process, and her guardian appeared and filed an answer for her, it was held that the guardian had no power to enter the appearance of his ward, and that the court had no jurisdiction of the person of the minor,—that it could be acquired only by service of process upon the minor. It is urged, that since that decision there has been a change made in the statute, under which change a guardian now has power to enter the appearance of his ward in a case where the ward has not been served with process. At the time of that decision there was the statutory provision that “guardians, by virtue of their office as such, shall be allowed, in all eases, to prosecute and defend for their wards.” (Rev. Stat. 1845, chap. 43, sec. 4.) There has since been some change of phraseology in the statute respecting the guardian’s powers in his ward’s suits.

In the Revised Laws of 1874, section 21 of the Dower act now reads: “Infants may petition by guardian or next friend, and other persons under guardianship, by their conservators. When an infant or person under guardianship is a defendant, he may appear by guardian or conservator, or the court may appoint a' guardian ad litem for such person, and compel the person so appointed to act.” And by section 18 of the Guardian and Ward act: “He (guardian) shall appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose as guardian or next Mend.” It is insisted that this 'power given, an infant may appear by guardian, and that the guardian shall appear for and represent his ward in all legal suits, authorizes the guardian to enter the appearance of his ward in cases-where the ward is not served with process. It would not seem that in this respect there has been any substantial enlargement of the guardian’s power from what it was in the former provision, that he should be allowed in all cases to prosecute and defend for his ward. We think the decision should be still, as before, that a guardian has no power to enter the appearance of his minor ward in a suit against the latter, where he has not been served with process,—that the power to appear is in cases where the ward is in court, where there has been service of process upon him.

The amended petition sets out that Nellie Dickison also was a minor. She, too, was not served with process.

The decree will be reversed, and the cause remanded for further proceedings.

Decree rmersed.


author: Mr. Justice Craig

text:
    Selina Gilmore et al. v. Martin C. Bissell.
    Filed at Ottawa May 9, 1888.

      Usury—interest upon interest, added as principal in renewal note. A promissory note was given, with interest payable annually. After several years, no interest having been paid, in ascertaining the amount due, for-which a renewal note was to be given, the holder charged on the interest due, from the .time it became due to the date of renewal, interest at six per cent per annum. This was added to the interest due and to the principal, the aggregate so ascertained being the principal in the renewal note: Heldr not usurious.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.
    Mr. E. Meers, for the appellants:
    To give a greater rate of interest than is allowed by statute, on a pre-existing debt for an extension, is within the statute. Shirley v. Welty, 19 Ill. 623.
    Interest past due and unpaid can not be added to the principal, and draw interest. McFadden v. Fortier, 20 Ill. 509.
    The fact that new notes, from time to time, have been given, does not change the case. Saylor v. Daniels, 37 Ill. 331 House v. Davis, 60 id. 367; Jenkins v. International Bank, 97 id. 568.
    If a usurious contract is made, express or implied, to take- or reserve more than lawful interest, it falls within the statute. Peddicord v. Connard, 85 Ill. 102.
    It is the duty of the court to protect the weak and necessitous against the oppression of the strong, in compelling them to pay usurious and compound interest. Payne v. Newcomb, 100 Ill. 611.

      When it is provided the interest is payable annually, which is not paid W'hen due, it may, by agreement, after due and unpaid, be added to the principal, and draw interest. Thayer v. Mining Co. 105 Ill. 540.
    To constitute usury from taking interest upon interest, it is not necessary to prove that there was an agreement made in advance for the payment of such interest. To give a sum in excess of the legal interest for an extension, the contract will be usurious. Leonard v. Patton, 106 Ill. 99.
    It is usury to take interest on interest, which exceeds the amount of interest fixed by the statute as the maximum. First Nat. Bank v. Davis, 108 Ill. 633; Farwell v. Meyer, 35 id. 40; Rev. Stat. chap. 74, sec. 11.
    Interest is payable on interest only on express contract, made after the interest has become due and payable. Leonard v. Villars, 23 Ill. 377; Barker v. International Bank, 80 id. 96; Edgerton v. Weaver, 105 id. 45.
    When a note is drawn for one or more years, which includes usury, no interest will be allowed, even when due, or in case of a new note given. Bressler v. Harris, 19 Bradw. 430.
    Mr. Geo. S. House, for the appellee:
    The case of Haworth v. Huling, 87 Ill. 23, is decisive of the question involved here.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill to foreclose a mortgage. The only defense relied upon was usury. On the hearing in the circuit court the defense was not sustained, and on appeal the decree was. affirmed in the Appellate Court.

It appears from the evidence, that Selina Gilmore, and her husband, David Gilmore, on the 14th day of April, 1875, executed and delivered to William Finley their promissory note for $1000, with interest at ten per cent, payable annually. This note was secured by mortgage on the premises in controversy. On the 28th day of August, 1878, no interest having been paid on the note, Finley required the parties to pay the debt or renew the note. They concluded to renew. In computing the amount due, the agent of Finley charged on the interest due, from the time it became due to the date of renewal, interest at six per cent per annum. This was added to the interest due and the principal, which all amounted to the sum of $1350, for which a new note and mortgage were given. The interest on the interest included in the mortgage amounted to $12.50, as is claimed by the defendants. The addition of this amount to the debt, and the agreement to pay it, it is insisted, rendered the transaction usurious. We do not concur in this view. The mortgagors had agreed to pay the interest on the mortgage debt annually, and it was their duty to observe that agreement; but they had failed to pay, as the interest each year became due. When the time, however, came to renew the debt, the mortgagors had the right, if they saw proper, to redeem their agreement and pay interest on the interest; and their agreement to pay that interest was not illegal, nor did it render the transaction usurious. What was done was ■ but the performance of a contract made by the parties, which they had the right to do. If authority was needed to sustain the view of the circuit and Appellate courts, Haworth v. Huling, 87 Ill. 23, is conclusive of the question made.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.