author: JUDGE FEHSFBERG

text:
    Margaret L. Kurtz, Appellant, v. Peter Kurtz, Appellee.
    Gen. No. 46,767.
    First District, Third Division.
    May 23, 1956.
    Released for publication June 13, 1956.

      Frederick J. Bertram, and John E. Erickson, both of Chicago, for plaintiff-appellant; Tenney and Dahman, and Robert L. Smith, all of St. Lonis, Missouri, of counsel.
    James A. Sprowl, of Chicago, for appellee; William J. LaVelle, and William B. Davenport, both of Chicago, of counsel.
   Opinion on Rehearing.

JUDGE FEHSFBERG

delivered the opinion of the court.

We granted defendant a rehearing in order to give further consideration to the question as to whether a partnership existed between plaintiff and defendant in the meat market business conducted by him.

Plaintiff filed her complaint in equity, seeking a decree finding her to be entitled to an undivided one-half interest in the meat market business operated and controlled by defendant, and for an accounting with respect thereto. An answer was filed, and upon a hearing before the chancellor a decree was entered dismissing plaintiff’s complaint for want of equity. She prosecutes this appeal from said decree.

Except as to her claim of one-half interest, there is virtually no conflict in the evidence. Plaintiff and defendant were formerly husband and wife. Two children were born of their marriage. While they were living together he was employed in a meat market. His employment ceased because of the bankruptcy of his employer. He asked plaintiff to help him raise money with which to start a meat market. She borrowed $400 on a life insurance policy she had maintained before their marriage. Four hundred dollars was borrowed on the household furniture of the parties, and an additional $200 was borrowed on a life insurance policy of his, in which she was named beneficiary. With this total amount, of which plaintiff contributed 60%, the meat market was started and operated by defendant in the fall of 1932. After the fall of 1932, he moved the meat market a few doors away and continued to operate under the same trade name, “Pete’s Market.” The new fixtures installed in the new location were paid for in- part by credit for the old fixtures in the previous location.

On direct examination, defendant testified he did not use any money from the loan on plaintiff’s insuranee policy to establish the business, but on cross-examination he admitted that as to this fact, “I can’t call her a liar,” because he did not remember.

He decided to separate from her on March 31, 1933, and left the family home, taking his personal belongings. They lived separate and apart for several months. Her efforts at reconciliation failed, and after negotiations between them as to their future status, he agreed to go to her attorney’s office to discuss a property settlement. They had a meeting at the attorney’s office, where a property settlement was agreed upon, the terms being that she was to file a complaint for divorce upon the ground of adultery; that the decree was to provide for her custody of the children and for alimony; and she was to have one-half interest in the meat market business operated by him.

Plaintiff filed her complaint for divorce. He was served with summons. He defaulted, and upon the hearing of the divorce case, though not represented by counsel, he was present in court when plaintiff testified to the terms of the property settlement. She there testified that she and her husband agreed that she was to have an undivided one-half interest in the meat market business operated by defendant, he to give her a bill of sale for such one-half interest, and in addition $300, of which $150 was "to be paid in cash upon the entry of the divorce decree, and further payments of $50 on the 15th of November and December 1933, and January 1934, and in addition thereto the sum of $25 a week until the children of the parties, then infants, reached their majority.

He testified in the instant case that he was present on the hearing of the divorce case but did not hear her testimony that she was to have one-half interest in his business, he to give her a bill of sale to evidence it. He did not deny that he heard the balance of her testimony. He denied that he had agreed to give her a one-half interest in the business, in the conference with his wife and her attorney.

The decree entered in the divorce proceeding recited the parties had entered into the property settlement agreement and recited its terms, as testified to by plaintiff. Shortly after the decree was entered, plaintiff left Chicago to make her home in St. Louis, Missouri, and surrendered the household furniture to defendant, upon which, he testified, he paid off the chattel mortgage. The decree was entered October 18, 1933. He admitted he obtained a copy of the decree sometime in 1948. The instant complaint was filed January 26, 1953. The transcript of evidence taken in the divorce case as well as the decree entered therein were received in evidence upon the hearing of the instant case.

Defendant contends that the evidence wholly fails to establish a partnership interest. For the first time in the petition for rehearing, defendant concedes that she is a tenant in common and entitled only to a half interest in the physical property used in the business at the time of the entry of the decree, and concedes that the doctrine of laches cannot be applied to plaintiff either as a tenant in common or as a partner. (Einsweiler v. Einsweiler, 390 Ill. 286, 292.) The divorce decree does not, in the decretal part, award a half interest in the business to plaintiff or order him to execute a bill of sale for such interest. The only witnesses in the instant case were plaintiff and defendant.

We think the clear weight of the evidence establishes a partnership interest. Her testimony as to their agreement for the half interest in the business is clearly substantiated by the findings in the divorce decree and in the testimony upon the divorce hearing. Until the petition for rehearing, his denial of such an agreement stood alone. Defendant admits he had a qopy of the decree of divorce for over five years. He was fully informed as to its contents. He made no protest against the findings in the decree as to the agreement for a half interest, and made no effort to have the decree modified or reviewed. We must assume from this record that the chancellor in the divorce case considered, in fixing the small amount of support money for plaintiff and the two children, the fact that she was to have a half interest in the business. Under such circumstances, defendant is clearly estopped from denying that plaintiff is entitled to a half interest in the business. The Uniform Partnership Act, Ill. Rev. Stat., Ch. 106%, § 4 (2), provides that “the law of estoppel shall apply under this act.” The failure to specifically provide in the decretal part of the divorce decree that plaintiff have a half interest in the business does not affect the probative value of the findings in the decree that such an agreement was entered into between the parties.

Defendant argues that it must be clearly established that the parties intended to form a partnership and to share in the profits, and that there is no evidence that the parties ever discussed partnership or a sharing in the profits.

It is the settled law of this State that as between the parties the existence of a partnership relation is a question of intention to be gathered from all the facts and circumstances. Written articles of agreement are not necessary, for a partnership may exist under a verbal agreement, and circumstances may be sufficient to establish such an agreement. The requisites of a partnership are that the parties have joined together to carry on a trade or venture for their common benefit, each contributing “property or services . . .” Rizzo v. Rizzo, 3 Ill.2d 291, 299.

The Uniform Partnership Act, Ch. 106%, § 6 [Ill. Rev. Stats. 1953, ch. 106%, § 6], provides:

; “Definition of partnership. (1) A partnership is an association of two or more persons to carry on as co-owners a business for profit.”

Both the property settlement agreement and the decree which approved it gave plaintiff one-half interest in the business. Defendant would limit the meaning of the term “business” to the physical property employed in the business at the time of the decree. We think it is too limited and narrow a construction upon the term “business.” “Business” has been described in 12 C. J. S., p. 761, and cases there cited, as a word of flexibility, of large signification and very comprehensive. The term “business” may include not only the physical property and inventory, but, as well, receipts of the business, and receipts would include any profit represented by it.

In In re Friedrichs’ Estate, 107 Cal. App. 142, 290 Pac. 54, the Court of Appeals held that a devise in a will of a half interest in the business of the testator meant all the property used by the decedent in the operation of said business, including the real property upon which such business was conducted, personal property located in the buildings thereon, stock on hand, accounts receivable, cash on hand and the commercial account, all used in connection with said business.

Certain it is, that defendant did not, and could not, consistently claim the money advanced by plaintiff to start the business was a loan or a gift by her, since at no time in the intervening years did he pretend that it was a loan. He made no promise or offer to repay it. There is no evidence that it was a gift.

In Mauricau v. Haugen, 387 Ill. 186, 196, it was held that where the wife furnishes the purchase money, and a deed is taken in the name of the husband, a presumption of gift or advancement to the husband from the wife does not arise.

Under all the circumstances, it is reasonable to construe defendant’s conduct and attitude as implying that plaintiff had invested her money in the business, and he so regarded it, since he made no offer to return her investment to her, but allowed it to remain in the business.

It is not necessary that the parties in the instant case should have employed the term “partnership” or expressly declared themselves to be partners. It is sufficient if the facts and circumstances imply a partnership. Rizzo v. Rizzo, supra.

In Fougner v. First Nat. Bank of Chicago, 141 Ill. 124, 132, the court quoted with approval the statement in Lintner v. Millikin, 47 Ill. 178:

“Parties may become partners without their knowing it, the relation resulting from the terms they have used in the contract or from the nature of the undertaking. They may make a bargain together without knowing it, which creates or involves a partnership, and subjects them to the law of partnership.”

If the present premises in which defendant operates the business were acquired with any of the partnership funds or profits, a resulting trust in favor of plaintiff should be enforced. Coddington v. Bevan, 315 Ill. 92; Winger v. Chicago City Bank & Trust Co., 394 Ill. 94. That depends upon the proof to be made upon the accounting. Furthermore, the Uniform Partnership Act, Ch. 106%, § 8 (2) [Ill. Rev. Stats. 1953, Ch. 106%, § 8, subd. (2)] provides:

“Unless the contrary intention appears, property acquired with partnership funds is partnership property.”

We think the manifest weight of the evidence requires a reversal of this decree. The decree is reversed and the cause remanded with directions to enter a decree declaring plaintiff to be a partner, for accounting, and for further proceedings in harmony with the views herein expressed.

Reversed and remanded with directions.

KILBY, J., concurs.

LBWE, P. J., took no part.


source: Caselaw Access Project

author: JUDGE FEINBERG

license: Public Domain

text:
    Norman Schlossberg, Appellee, v. Lincoln Park West Corporation, Appellant.
    Gen. No. 46,791.
    First District, Third Division.
    May 23, 1956.
    Released for publication June 13, 1956.

      Mayer Goldberg, and Leonard L. Levin, both of Chicago, for appellant; Burton Berger, of Chicago, of counsel.
    Haft and Shapiro, and Rose, Burt & Pierce, all of Chicago, for appellee; Morris A. Haft, and Grover D. Rose, both of Chicago, of counsel.
   JUDGE FEINBERG

delivered the opinion of the court.

Defendant appeals from a judgment awarding a writ of mandamus against it, to compel the transfer to plaintiff of a certificate of stock, upon the books of the corporation.

It appears from the evidence that Joseph and Meyer Cohen were in the automobile finance business and had many dealings with the Belmont National Bank through Henry Beutel, its president. They approached Beutel to help them finance the purchase of the Parkway Hotel. Negotiations with Beutel resulted in financial assistance to the two Cohens through the banks controlled by Beutel, and the consummation of the purchase.

The defendant corporation was formed with a total authorized issue of 100 shares, par value $10 each, and the title to the hotel property was conveyed to the corporation, which in turn executed a purchase money second mortgage to secure the purchase price. Sixty-six and two-thirds shares were issued and held by nominees of the Cohens. Certificate No. 8 for thirty-three and one-third shares was issued in the name of Amelita Griebel, nominee of and secretary to Beutel. Stock certificate No. 8 was thereafter cancelled, and in its stead certificate No. 9 for thirty-three and one-third shares (the subject of dispute in the instant action) was issued to Maurice J. Sherow. The cancelled certificate No. 8 bore the endorsement of Amelita Griebel. It is evident that Sherow, who had a number of financial transactions with Beutel, acquired certificate No. 8 from Beutel.

It is undisputed that the Cohens acquired the control and complete management of the defendant corporation and the hotel property. They knew of the cancellation of certificate No. 8 and the issuance of certificate No. 9, because certificate No. 9, dated December 2, 1952, issued to Sherow, is signed by Meyer Cohen, as president, and Beulah R. Lantz, as secretary. This certificate, on the reverse side, was assigned and transferred to plaintiff: by Maurice J. Sherow, and tendered by plaintiff to defendant corporation for transfer. The corporation refused to transfer the certificate, which resulted in the bringing of the instant action.

The special defenses set up by the answer to the complaint are that the certificate was never delivered by Sherow to plaintiff; that the Cohens claimed to be the owners of said certificate; that there was no valuable consideration passed between plaintiff and Sherow for said certificate; and that Meyer and Joseph Cohen are the legal and equitable owners of said certificate, having paid all of the notes to the West Irving State Bank, of which Beutel was president, and which allegedly had held said certificate as collateral security for the indebtedness to it.

The issuance of certificate No. 9 to Sherow is hardly consistent with the claim made by the Cohens that they are the equitable owners of the certificate in question. If it be true, as they contend, that certificate No. 8 was held as collateral security for the indebtedness to the West Irving State Bank, then why would they consent to a transfer of that certificate and the issuance of certificate No. 9 to Sherow? It would seem logical that before they issued certificate No. 9, they would inquire of Sherow as to what interest he had in certificate No. 8, and would refuse to issue certificate No. 9 if Sherow laid claim to the certificate as owner. There is no evidence of any such inquiry made before issuing certificate 9.

The Uniform Stock Transfer Act (Ill. Rev. Stat., Ch. 32, par. 416, § 1) provides that title to a certificate can be transferred by delivery of the certificate, endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner thereof. Paragraph 421, § 6, provides that the endorsement of a certificate by the person appearing by the certificate to be the owner is effectual (except as provided in §7 [Ill. Rev. Stats. 1955, ch. 32, §422]), though the endorser or transferor (d) has received no consideration. Section 7 sets up the various instances in which the endorsement or delivery of a certificate may be reclaimed by appropriate proceedings in court. None of the reasons set up in § 7 are either claimed by defendant or applicable in the instant action. The claim that no valuable consideration passed between plaintiff and Sherow is therefore without merit and furnishes no defense to the demand for a transfer under the statute. In any event the evidence sufficiently establishes a valuable consideration for the assignment of certificate No. 9 to plaintiff.

There is no merit in the contention that plaintiff failed to prove the genuineness of the signature to the assignment of the instant certificate. The Mandamus statute (Ill. Rev. Stat., Ch. 87, § 11) makes the Civil Practice Act applicable to proceedings thereunder. The Civil Practice Act (Ch. 110, § 35 (2) [Ill. Rev. Stats. 1955, ch. 110, § 35, subd. (2)]) provides:

“The allegation of the execution or assignment of any written instrument is admitted unless denied in a pleading verified by oath, ... If the party making the denial is not the person alleged to have executed or assigned the instrument, the denial may be made on the information and belief of that party.”

The answer of defendant does not deny the genuineness of the execution or the assignment of the certificate in question, as alleged in the complaint, therefore the genuineness stands admitted. Peltinton v. Rongetti, 337 Ill. App. 383.

The claim that the Cohens were necessary parties to the action is without merit. It clearly appears that they knew of the pendency of the action, employed counsel to defend it, and obviously furnished to counsel the information that they made claim to the certificate in question. On behalf of the defendant they filed an answer making such claim, and appeared as a witness upon the trial of the cause. They are hardly in a position to now say that they should have been made parties to the proceeding. They did not apply to the court for leave to intervene, if they deemed it necessary, to set up their interests.

We think the record fully justifies the judgment, and it is affirmed.

Affirmed.

KILEY, J., concurs.

LEWS, P. J., took no part.


author: JUSTICE CULBERTSON BARDENS, J., SCHEINEMAN, P. J.,

text:
    Marion Morgan, and James Morgan, Plaintiffs-Appellees, v. Mixon Motor Company, Defendant-Appellant, and John Nadeau, Defendant-Counter-claimant-Appellee.
    Term No. 56-F-8.
    Fourth District.
    June 2, 1956.
    Released for publication October 26, 1956.

      SCHEINEMAN, P. J., dissenting.

      Pope and Driemeyer, of East St. Lonis, for defendant-appellant; Frank M. Rain, of East St. Lonis, of counsel.
    Listeman & Bandy, of East St. Louis, for plaintiffsappellees.
    Walker & Williams, of East St. Louis, for defendantcounterclaimant-appellee.
   JUSTICE CULBERTSON

delivered the opinion of the court.

This is an appeal by defendant, Mixon Motor Company, from judgments on jury verdicts against it in the amount of $25,000 for plaintiff, Marion Morgan; $1,500 for plaintiff, James Morgan; and $1,200 for defendant-counterclaimant, John Nadeau. The jury that tried the cases had returned verdicts of not guilty as against defendant Nadeau and another defendant, but no appeal was taken from those judgments.

It is the contention of Mixon Motor Company on appeal in this Court that the Trial Court erred in refusing to direct a verdict in favor of defendant and against the plaintiffs for the reason that there was no evidence that such defendant was guilty of any of the negligence charged against it, or that such defendant violated any duty owed plaintiffs; and, similarly, that the Court should have directed a verdict on the counter-claim for the reason that there was no evidence that defendant was guilty of any negligence which was charged against it in the counter-claim. In the alternative, the defendant contends that its motion for a new trial should be allowed on both the complaint of plaintiffs and the counter-claim, on the ground that the verdicts were contrary to the manifest weight of the evidence.

From the record it appears that defendant Nadeau was driving his automobile in a- southerly direction on route 3, a four-lane highway, near the city limits of East St. Louis. The automobile in which plaintiffs were riding was traveling in a northerly direction on that highway, and when such automobile arrived at a place on the highway about twenty-five or thirty feet south of the Nadeau automobile, the Nadeau automobile suddenly and without warning, lurched over the center line into the path of plaintiffs’ automobile. Another automobile struck plaintiffs’ automobile from the rear, almost immediately thereafter. Severe injuries were suffered by Marion Morgan, and some injuries were sustained by plaintiff, James Morgan, her husband, who also incurred damages to his automobile. Nadeau also suffered personal injuries.

Defendant Nadeau asserted that his automobile was forced into plaintiffs’ lane of travel because, when he applied'the brakes, the left front brake wheel caught and pulled his automobile into the path of plaintiffs. He filed a counter-claim against the defendant Company on the ground that the Company had negligently repaired his automobile and as a result thereof he was unable to control the movement of the car when the brakes were applied. The evidence in the case discloses that on the morning of September 3, 1953 Nadeau, while on his way to work, drove his automobile into the garage operated by defendant to have repairs made. At the time he left the automobile at the garage the brakes were working properly and did not catch or pull the automobile to the left upon application of the brakes. A short time prior to this visit the defendant -Company had relined the brakes and while that repair job was in progress, discovered that the left front wheel drum was cracked and suggested that a new left brake drum be installed. To do the repair work, .the left front of the automobile was raised by means of a jack, and the left front wheel was removed, and the nut unscrewed on which the drum assembly was held in place. When the drum was removed the brake band or lining was exposed. There was evidence that if a small amount of brake fluid or grease gets onto a brake lining or drum, upon application of the brake pedal the brake will catch and pull the automobile to one side. There was evidence on behalf of defendant that the drum and hub were clean and in good condition. An experienced brakeman who testified, made an examination of the left front wheel and braking apparatus after the accident and found a slight glaze on the left front brake lining, which he stated, must have been caused by the heat and friction of operating the brake, with a slight brake fluid leak, and which could not have been caused by the collision.

The evidence which showed that the brakes on the automobile operated properly before and at the time of the delivery of the automobile to the defendant Company for repairs; that the brake band was exposed during the repair work; that the only cause of the brake catching is fluid or grease on the brake bands; and that a short time thereafter a glaze was detected thereon which a competent witness testified was caused by friction or a fluid-soaked band, was sufficient evidence to justify the verdicts of the jury that there was negligence in making the repairs and in failing to properly test after repairs (Lindroth v. Walgreen Co., 407 Ill. 121, 134; Dixon v. Montgomery Ward & Co., 351 Ill. App. 75, 94; Rost v. Kee & Chappell Dairy Co., 216 Ill. App. 497). Where there is conflicting evidence it is well established that the verdict of the jury should not be disturbed if there is a reasonable basis in the record for the conclusion that there was negligence which caused the injury (Dowler v. New York, C. & St. L. R. Co., 5 Ill.2d 125, 129; Lindroth v. Walgreen Co., supra, at page 134).

The allegations of the complaint of plaintiffs charged the defendant Company with negligence in repairing or adjusting the brakes on the automobile of Nadeau, so that when the brakes were applied the left front wheel of the automobile caused the automobile to pull to the left from a straight direction; and also, that the defendant having repaired and adjusted the brakes, negligently and carelessly failed to test the brakes, or improperly and inefficiently tested them and permitted the automobile to be driven from the shop by the defendant, well knowing that the automobile would be operated on the public highway by the defendant.

It is contended by defendant Company that the charge is one of specific negligence, and that while the brakes were exposed the circumstance that on the last trip only the brake drum was replaced and repaired, results in a failure to prove any of the charges of negligence made in the complaint. It appears, however, from the record that the adjustment of the brake and the subsequent replacement of the brake drum were part of a general repair of brakes and elements incident to the brakes, and that the general allegations of the complaint were sufficient under the record to establish a right of action of plaintiffs as against defendant Company. There was evidence to sustain the conclusions of the jury that there was negligence on part of defendant in handling the braking equipment of the Nadeau automobile, and that such negligence caused the injury.

Nó objection on the ground of variance was made by defendant Company during the trial, and judgment would not be reversed after verdict for want of an allegation or averment, the omission of which could have been raised by motion (1955 Illinois Revised Statutes, Chapter 7, Sections 6 and 7). The ground of variance should be raised by specific objection during the trial, pointing out the variance (Williams v. Walsh, 341 Ill. App. 543, 549). Neither the motion for a direct verdict nor the motion for a new trial raises this objection properly in the first instance (Delatine v. Kramer, 235 Ill. App. 359, 361; Linnberg v. City of Bock Island, 157 Ill. App. 527, 529).

There was a duty to all persons to exercise ordinary care to guard against any injury which may naturally flow as a reasonably probable and foreseeable consequence of the act. It is not dependent upon a contractual relationship between the parties, or representations or warranties (Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95, 103; Kahn v. James Burton Co., 5 Ill.2d 614, 622). It is obvious that the verdicts are not clearly against the manifest weight of the evidence, and will not be set aside under such circumstances (Chapman v. Deep Bock Oil Corp., 333 Ill. App. 529, 537; Kahn v. James Burton Co., supra; Olin Industries, Inc. v. Wuellner, 1 Ill.App.2d 267, 271).

It is contended on appeal by the defendant Company that the evidence of the witness who examined the automobile after the accident was improperly admitted over defendant’s objection, since the witness testified as to a condition he found three days after the collision. The record shows that a mechanic who worked for the defendant Company testified that the car was placed in the Mixon basement; that he drove the car a few feet forward and backward in the basement, applied the brakes, and that they still worked all right. This test was made on the morning following the accident. To meet that evidence the plaintiffs presented a witness who made his examination two days after the mechanic for the Mixon Company had examined the car. During all this time the car was in the Mixon Company’s custody, and in a place safe from tampering. There was no affirmative evidence of any change in the condition of the car. The evidence on behalf of plaintiffs tended to disprove the validity of the mechanic’s test made by the defendant Company’s mechanic. Under the facts in the record, there was no error in the admission of snch testimony (Pitrowski v. New York, C. & St. L. R. Co., 6 Ill.App.2d 495, 499; Moore v. Schoen, 313 Ill. App. 367, 371).

In view of the facts in the record before ns, there is no basis for disturbing the verdicts of the jury and the judgments entered pursuant thereto in favor of the Morgans, as plaintiffs, and Nadeau, as counter-plaintiff. The judgments of the Circuit Court of St. Clair county will, therefore, be affirmed.

Judgments affirmed.

BARDENS, J.,

concurring.

I concur in the result reached in the above opinion, but do not wish the opinion to be understood as holding that evidence of some foreign substance on a brake band is, of itself, a basis for a charge of negligence. It seems to me it is a matter of common knowledge that brakes on cars may become faulty and grab when pressure is applied without there being fault on the part of anyone.

SCHEINEMAN, P. J.,

dissenting.

I am unable to concur in the result of this case. It seems to me there is a complete lack of evidence tending to show negligence, and that the testimony points strongly to the probable cause, which cannot be charged to the garage company.

A mechanic was called by plaintiffs to explain the operation of hydraulic brakes. He described the position of the cylinders at each wheel, and stated: “If a brake catches or pulls to one side it is usually due to either brake fluid or some sticky substance like coal or grease, or something like that on the brake lining.”

Another mechanic testified that a sudden grab of brakes such as is asserted in this case, is not due to the adjustment of the hydraulic brakes, but to the intrusion of some foreign substance into the mechanism.

Surely brake-grabbing is not circumstantial evidence of negligence for it could happen to anyone that a drop of brake fluid might fall so as to work into the brake lining. It is probably not unusual, although it is likely that the driver holding the wheel would not ordinarily lose control. There is nothing in the evidence to justify rejection of this possibility, and nothing to support any other conjecture.

It is undisputed that Nadeau had his brakes attended to three weeks before the accident. He was notified one drum was cracked. He drove the car for the ensuing three weeks and testified the brakes were all right. On the day of the accident he brought the car in for the sole purpose of having the cracked drum replaced, not for another brake overhaul. The mechanic who made the change testified how he cleaned the drum, that he inspected the band as well as the drum and both were clean when he put them together.

Nadeau testified that he drove slowly in traffic, and used the brakes lightly at four stops, and they worked all right. Between the last two stops he says he traveled a quarter of a mile in second gear. Then he got on the highway and attained a speed of 30 miles per hour, when he again applied the brakes and the jerk occurred, with the resultant collision. I fail to discover anything in this record of events pointing to a conclusion that a foreign substance got into the brake while in the garage, rather than while on the road.

Besides this there is other testimony more pointed. Plaintiff’s attorney had caused another mechanic, who owned an independent garage, to visit the Mixon place after the accident, for the express purpose of looking for a mechanical defect that might have caused it. He testified to removing the left front wheel, finding a new brake drum, that he observed a glazed place on the brake lining, and that there was leakage at the left wheel cylinder. He further stated his opinion that this condition was not caused by the head-on-collision. This is the only direct evidence of cause produced.

None of the testimony of any of the mechanics on this subject was contradicted in any way. The plain import of the whole evidence indicates that the replacement of the brake drum was not the cause of the accident, and logically indicates a drop of brake fluid caused the grabbing. No evidence supports the charges of negligence. Of course, counsel are able to conjecture other possible causes of the brake condition found after the accident, but there is not a scintilla of evidence to sustain these guesses.

• Appellees cite Lindroth v. Walgreen Co., 407 Ill. 121, 134, and other cases to the effect the choice between conflicting versions of the occurrence is for the jury. But this rule is always expressly limited by the statement that “Where there is a reasonable basis in the record for concluding that there was negligence that caused the injury, it is irrelevant that fair minded men might reach a different conclusion.” None of the cited Illinois cases departs from the sound principle that the evidence must show a reasonable basis for concluding that there was negligence.

The provision in the Illinois constitution preserving the right to a jury trial as it existed at common law, does not limit its application to plaintiffs. The defendant is also entitled to a fair trial as it existed at common law, under which the court would not permit a jury to fasten liability on a defendant, based only on conjecture suggested by counsel, without evidentiary support; I have full confidence in the honesty of jurors, and have observed that they eagerly seek to do justice, as a normal condition. But there will necessarily be ■ari occasional mistake, and when that occurs, the courts ought to follow the fundamental principle of the common law, that an obviously erroneous verdict will not be permitted to stand. To depart from that principle. serves only to encourage groundless and vexatious litigation. I fear the present case is a departure, and for that reason I dissent.


author: JUDGE KILEY.

text:
    In Matter of Estate of Ulreh Vogt, Deceased. Frances Vogt, Appellee, v. Ulreh Vogt, Jr., as Administrator with Will Annexed of Estate of Ulreh Vogt, Deceased, Appellant.
    Gen. No. 46,721. (Abstract of Decision.)
    First District, Third Division.
    May 2, 1956.
    Rehearing denied June 13, 1956.
    Released for publication June 14, 1956.
    Ernest Feldon, for respondent-appellant; Harold P. Ronin, of counsel; Driscoll & Cleary, for petitioner-appellee.
   Opinion by

JUDGE KILEY.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Ruth Brophy, Plaintiff in Error.
    Gen. No. 46,819. (Abstract of Decision.)
    First District, Third Division.
    May 2, 1956.
    Released for publication June 14, 1956.
    John Gutkneeht, State’s Attorney of Cook county, for defendant in error; Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, William L. Carlin, and Lawrence Genesen, Assistant State’s Attorneys, of counsel; J. Edward Brown, for plaintiff in error.
   Opinion by

JUDGE KILEY.

Hot to be published in full.


author: JUDGE KILBY.

text:
    Veronica Stark, Appellant, v. William Stark, Appellee, John and Isabellee Rubien, and Casimir Griglik, Interveners.
    Gen. No. 46,829. (Abstract of Decision.)
    First District, Third Division.
    May 2, 1956.
    Released for publication June 14, 1956.
    Sol R. Friedman & I. S. Friedman, and Jerome Berkson, for appellant; Gariepy and Gariepy, for appellees; Fred A. Gariepy, and John Spalding, of counsel.
   Opinion by

JUDGE KILBY.

Not to be published in full.


author: PRESIDING JUSTICE FRIEND.

text:
    Alice Jonkman, Appellee, v. George Singletary, Appellant.
    Gen. No. 46,764. (Abstract of Decision.)
    First District, First Division.
    May 7, 1956.
    Released for publication June 12, 1956.

      Wyatt Jacobs, for appellant; Joseph B. Lederleitner, of counsel; Fischer, Bosgraf & MaeKenzie, for appellee; John J. Kennelly, of counsel.
   Opinion by

PRESIDING JUSTICE FRIEND.

Not to be published in full.


text:
    In Matter of Petition of Josephine Kollman, and Cross-Petition of Robert A. McNeil and Helen Chalmers McNeil to Adopt Michael Chalmers Kollman. Josephine Kollman, Appellant, v. Robert A. McNeil, and Helen Chalmers McNeil, Appellees, Michael Chalmers Kollman, Appellee.
    Gen. No. 46,813. (Abstract of Decision.)
    First District, First Division.
    May 7, 1956.
    Released for publication June 12, 1956.
    Suekoff, Frost & Spiegel, for appellant; Raymond I. Suekoff, of counsel; Sidley, Austin, Burgess & Smith, for cross-petitionersappellees; Merritt C. Bragdon, and Alice M. Bright, of counsel.
   Opinion by

PRESIDING JUSTICE FRIEND.

Not to be published in full.


author: JUDGE NIEMEYER.

text:
    Ranko S. Ignjatovic, Plaintiff-Cross-Defendant-Appellee, v. Rosemary Ignjatovic, Defendant-Cross-Complainant-Appellant.
    Gen. No. 46,860. (Abstract of Decision.)
    First District, First Division.
    May 7, 1956.
    Released for publication June 12, 1956.
    Lloyd C. Moody, for defendant-appellant; no brief filed for plaintiff-appellee.
   Opinion by

JUDGE NIEMEYER.

Not to be published in full.


author: JUDGE BURKE.

text:
    In Matter of Petition of Julian Levey, and Lois Earlix Levey to Adopt Jerome Silver Lee. Julian Levey, and Lois Earlix Levey, Appellants, v. Bertram Z. Lee, Appellee.
    Gen. No. 46,820. (Abstract of Decision.)
    First District, First Division.
    May 7, 1956.
    Released for publication June 12, 1956.

      Loehtan and Wolfe, for appellants; Bernard B. Wolfe, of counsel; Anthony J. Mentone, and Harry G. Fins, for appellee.
   Opinion by

JUDGE BURKE.

Not to be published in full.


author: JUDGE REYNOLDS.

text:
    George Totsch, Plaintiff-Appellee, v. Roy E. Johnson, and Eileen Johnson, Defendants-Appellants.
    Gen. No. 10,047. (Abstract of Decision.)
    Third District.
    May 14, 1956.
    Released for publication May 31, 1956.
    Bellatti, Arnold & Fay, for defendants-appellants; Schimmel & Schimmel, for plaintiffappellee.
   Opinion by

JUDGE REYNOLDS.

Not to be published in full.


author: JUDGE CARROLL.

text:
    Goldie Black Moore, Plaintiff-Appellee, v. Albert Black, Defendant-Appellant.
    Gen. No. 10,069. (Abstract of Decision.)
    Third District.
    May 14, 1956.
    Released for publication May 31, 1956.
    Francis R. Wiley, and Louis L. Mason, for defendant-appellant; Emanuel Rosenberg, Joseph L. Rosenberg, for plaintiff-appellee; Albert E. Hurt, of counsel.
   Opinion by

JUDGE CARROLL.

Not to be published in full.


author: JUDGE EEINBERG.

text:
    Genevieve Layton, Appellant, v. George H. Layton, Appellee.
    Gen. No. 46,621. (Abstract of Decision.)
    First District, Third Division.
    May 23, 1956.
    Released for publication June 13, 1956.

      George Yellen, for appellant. Denenberg and Nothin, for appellee; Joseph B. Denenberg, and Nathan T. Nothin, of counsel.
   Opinion by

JUDGE EEINBERG.

Not to be published in full.


author: JUDGE FEINBERG.

text:
    Elmer Burroughs, Appellant, v. Chicago Transit Authority, a Municipal Corporation, Appellee.
    Gen. No. 46,757. (Abstract of Decision.)
    First District, Third Division.
    May 23, 1956.
    Rehearing denied June 13, 1956.
    Released for publication June 13, 1956.

      Prescott, Burroughs, Taylor & Carey, for appellant; A. M. Burroughs, and Edmond W. Ragan, of counsel; Thomas C. Strachan, Jr., Francis J. Mullen, and James E. Hastings, for appellee; James E. Hastings, of counsel.
   Opinion by

JUDGE FEINBERG.

Not to be published in full.


text:
    Camille De Rose, Plaintiff, v. George C. Adams, Defendant-Appellant, George W. Faulkner, Receiver-Appellee, A. M. Burroughs, Appellee.
    Gen. No. 46,796. (Abstract of Decision.)
    First District, Third Division.
    May 23, 1956.
    Released for publication June 13, 1956.
    George C. Adams, pro se, defendant-appellant; George C. Adams, pro se, and Lawrence M. Fine, of counsel; A. M. Burroughs, for George W. Faulkner, receiver and appellee.
   Opinion by

JUDGE FEINBERG.

Not to be published in full.


text:
    Mildred Novak, Appellant, v. Peter Novak, Appellee.
    Gen. No. 46,749. (Abstract of Decision.)
    First District, Third Division.
    May 23, 1956.
    Rehearing denied June 13, 1956.
    Released for publication June 13, 1956.
    Robert E. Dunne, for appellant; Schultz & Brunswick, for appellee; Joseph E. Brunswick, of counsel.
   Opinion by

JUDGE KILEY.

Not to be published in full.


text:
    Paul A. Corso, Appellant, v. Ethel Fisher Dixon, et al., Appellees.
    Gen. No. 46,818. (Abstract of Decision.)
    First District, Third Division.
    May 23, 1956.
    Rehearing denied June 13, 1956.
    Released for publication June 13, 1956.
    Freeman & Freeman, for appellant; Earl Freeman, and Marvin G. Freeman, of counsel; John B. Schmidt, and Edmund M. Sinnott, for appellees.
   Opinion by

JUDGE KILEY.

Not to be published in full.


text:
    K. K. Kindwall, Appellee, v. Larson & Ringius, Inc., Appellant.
    Gen. No. 46,854. (Abstract of Decision.)
    First District, Third Division.
    May 23, 1956.
    Released for publication June 13, 1956.

      Ward Heidenrieh, for appellant; Johnson, Cass &. Bateman, of counsel; Bergstrom, Evans & Nelson, for appellee; Edward H. Nelson, of counsel.
   Opinion by

JUDGE KILEY.

Not to be published in full,


author: PRESIDING JUSTICE HIBBS

text:
    Lolita Krutsinger, a Minor, Kenneth Krutsinger, a Minor, and Karen Krutsinger, a Minor, by Dolores Krutsinger, Their Mother and Next Friend, Plaintiffs-Appellees, v. Illinois Casualty Company, an Inter-Insurance Exchange, Defendant-Appellant.
    Gen. No. 10,038.
    Third District.
    May 14, 1956.
    Rehearing denied June 28, 1956.
    Released for publication June 28, 1956.

      Loren E. Murphy, of Monmouth, and Bozeman, Moran & Klockau, of Bock Island, for defendant-appellant; Bernard J. Moran, of Rock Island, of counsel.
    John L. Franklin, of Champaign, for plaintiffsappellees.
   PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

Plaintiffs, Lolita Krutsinger, Kenneth Krutsinger and Karen Krutsinger, all minors, by Dolores Krutsinger, their mother and next friend, filed a suit in the Circuit Court of Champaign County on June 2, 1953 against certain tavern owners including Mándel Barnett, Mildred Barnett and Norman Barnett, partners doing business as Piccadilly Liquor Store. The complaint alleged that the defendants were subject to the provisions of the Dram Shop Act (Ill. Rev. Stat. 1951, Chap. 43, pars. 94 et seq.); that they violated Sec. 131 thereof by selling liquor to plaintiffs’ father, whom they knew to be a habitual drunkard, and Sec. 135 thereof, by causing the intoxication of plaintiffs’ father with the result that he was unable to furnish plaintiffs support and maintenance, citing Ill. Rev. Stat. 1951, Chap. 43, pars. 131 and 135. Both actual and exemplary damages were sought. The Barnetts were duly served with summons, which they turned over to Robert J. Milum, the agent from whom they had purchased their dram shop insurance. He, in turn, mailed the summons to one of the current insurers and on June 25, 1953 notified by letter each of the other insurers who would be involved in the case including Hlinois Casualty Company, the defendant in this proceeding, who, though not on the risk at the time of the original lawsuit, had insured the Barnetts for a portion of the time set up in the complaint, to-wit, from September 29, 1951 until July 7, 1952.

On June 29, 1953, an attorney for the Illinois Casualty Company in Moline, Hlinois called plaintiffs’ attorney at Urbana and received assurances that no default would be taken against the company until he had an opportunity to decide the company’s position in the matter. About a week later a copy of the complaint was obtained from the court files by the company, but it did not file an answer thereto on behalf of its insured. An answer was filed, however, for the insureds by their personal attorney.

On February 22, 1954 an attorney for the Hlinois Casualty Company was observed in the court room during a hearing in the Circuit Court on a motion in the case. Shortly thereafter negotiations for settlement were started but the Casualty Company did not participate. Instead on March 9, 1954 it instituted an action in the Circuit Court of Rock Island county for a declaratory judgment to define its rights and liabilities under its contract of insurance involved in the dram shop case in Champaign county.

The dram shop case was finally set for trial in Champaign county on April 5, 1954. On March 26, 1954 plaintiffs served notices that they would ask leave of court on March 29th to file an amended complaint instanter. On the day in question such leave was granted and the plaintiffs filed an amended complaint limiting their action to Sec. 135 of the Dram Shop Act and omitting any claim for exemplary damages.

All defendants including the.. Barnetts were ruled to plead by April 1st. An answer was filed on behalf of the Barnetts by their personal attorney.

On April 1st the legal guardian of the plaintiffs, appointed by the County Court of Champaign county, filed a petition in that court setting up the filing of the dram shop case in the Circuit Court of that county and alleged that “practically all of the sales or gifts of alcoholic liquor upon which the plaintiffs rely as having produced permanent losses to their means of support accrued subsequent to October 1, 1951 and prior to July 1, 1952; that during all of that period of time the Illinois Casualty Company . . . was the carrier upon each of the dram shops in question . . . except one.” The petition further alleged that the other insurance carriers involved were willing to negotiate a settlement based upon the periods of coverage of their respective contracts, but that the Casualty Company had refused to participate in a common settlement; that the other insurance carriers had offered to contribute $4,800 to any judgment which would be rendered against defendants in the Circuit Court, which sum should be distributed as follows: $1,800 to Karen Krutsinger, $1,600 to Kenneth Krutsinger and $1,400 to Lolita Krutsinger; that said offer was based on the condition that the plaintiffs would agree to look only to the Illinois Casualty Company for the balance of any judgments rendered in their favor by the Circuit Court. The petitioning guardian advised the court that he believed that it was for the best interests of his wards that the settlement offered be accepted and prayed that he be authorized to accept it. On the same day, after an ex parte hearing, the County Court entered an order authorizing the guardian to settle with the other insurance carriers.

On March 31, 1954 attorneys for the Casualty Company wrote the personal attorney for the Barnetts claiming breaches of condition in its policy and declined to defend the dram shop case. On April 1st these same attorneys on behalf of the Casualty Company wrote the Barnetts setting forth the alleged breaches in the conditions of the policy and also notifying them that the company would not defend the dram shop case unless they would execute a nonwaiver agreement preserving these defenses for the company. The letter suggested that the Barnetts would be personally liable for the balance of any judgment in excess of the reported settlement with the other insurance companies and urged them to seek advice from different counsel. The Barnetts’ personal attorney called the attorneys for the Casualty Company on April 2nd and informed them that the Barnetts could not sign a nonwaiver agreement because of the terms of their settlement with the other companies.

The dram shop case was tried by the Circuit Court of Champaign county on April 5, 1954 and verdicts were returned in favor of Lolita Krutsinger for $4,000, Kenneth Krutsinger for $4,800 and Karen Krutsinger for $6,000. Judgments were entered on the verdicts and no appeals were taken therefrom. Credits were allowed pursuant to the stipulation and the judgments have been reduced by those amounts. No further proceedings were ever had in the declaratory judgment action in Bock Island county.

The present suit was filed against the Casualty Company in the Circuit Court of Champaign county on May 5, 1954 for the Krutsinger children by their mother and next friend. The complaint describes briefly the previous suit and settlement agreement with the other companies and the verdicts recovered. It seeks to recover the amounts of those verdicts as reduced from amounts received from the other insurance corn-parties. The Company’s answer was filed on July 29, 1954, and in addition to denying the allegations of the complaint set up four separate affirmative defenses. Plaintiffs replied and the cause came to trial on January 17, 1955. At the close of all the evidence plaintiffs moved to withdraw from the consideration of the jury the issues raised by the separate defenses in defendant’s answer, which motion was allowed. Plaintiffs then moved for a directed verdict. This motion was also allowed and the jury as instructed by the court returned verdicts for $4,300.58 in favor of Karen Krutsinger, $3,223.11 in favor of Kenneth Krutsinger and $2,900 in favor of Lolita Krutsinger. Defendant has appealed to this court.

Defendant, Illinois Casualty Company, sometimes referred to hereafter as “the Exchange” points out that any defense it has may be asserted against the plaintiffs here since their rights are no greater than those of the Barnetts, the insureds under the policy in question. With this we agree. (Schneider v. Autoist Mut. Ins. Co., 346 Ill. 137.) It insists first that the insureds breached their contract of insurance by failing to personally notify it of the dram shop suit and by failing to deliver to it the summons served upon them. The policy provides: “the insured shall give to the Exchange or to its attorney-in-fact, Blackhawk Incorporated, immediate written notice with full particulars of any acts or occurrences covered thereby, and shall also give like notice of claims for damages on account of such acts or occurrences. If any suit is brought against the insured to recover such damages, the insured shall immediately deliver to the Exchange or to its attorney-in-fact, Blackhawk Incorporated, every summons or other process served upon him.” This is a common provision in policies of this type and has been repeatedly approved by the courts of this State. (Meyer v. Iowa Mut. Liability Ins. Co., 240 Ill. App. 431; Heilig v. Continental Casualty Co., 280 Ill. App. 142.) It is a provision, however, that may be waived by the company. (Sandoval Zinc Co. v. New Amsterdam Casualty Co., 235 Ill. 306.) In the case before us it is clear that the Casualty Company had actual notice of the dram shop suit in Champaign county. The Barnetts’ agent in Champaign notified it by letter, which it admits receiving; its attorneys obtained a copy of the complaint within a reasonable time after the suit was filed, and were assured that they would be given ample time to file an answer. We do not believe that the Casualty Company can complain because it was notified by the Barnetts’ agent rather than by the insureds themselves. The Supreme Court in Simmon v. Iowa Mut. Casualty Co., 3 Ill.2d 318 said at page 322: “Conceding that the insurance company is entitled to reasonable notice to protect its interests, when such notice is given by a person other than the assured is the company then without liability in the event the injured party is entitled to a recovery? We do not feel that such a harsh result should follow, nor that it was in fact intended by the contracting parties. A strict agency is not contemplated.” The Circuit Court therefore properly withdrew the issue of notice from the jury.

The Casualty Company also contends that the provision in the above quoted paragraph concerning the summons is a separate and distinct requirement which its insureds fail to meet. Such a provision was so construed in Potter v. Great American Indemnity Co. of New York, 316 Mass. 155, 55 N.E.2d 198, but like any other provision may be waived by subsequent conduct of the parties. In the instant case the Casualty Company was notified of the service of summons upon its insureds and immediately, through its attorney, took steps to ascertain its position in the matter. On its own initiative it obtained a copy of the complaint and sought to protect its interests from a default. Certainly it sustained no injury because of any omission by its insureds since for a short time at least it took every step it could have been expected to take had it received the summons. Under these circumstances we believe that the Casualty Company waived the failure of its insureds to forward the summons to it. In Korch for Use of Doody v. Indemnity Ins. Co. of North America, 329 Ill. App. 96 the court pointed out that only slight evidence is sufficient to establish a waiver of a provision of this type in an insurance policy. The court therefore properly withdrew this issue from the jury.

The Casualty Company next points out that the policy in question here provided that “The Exchange shall have the exclusive right to contest or settle any of said suits or claims,” and further that “The insured shall not except at his own cost, voluntarily make any payment, assume any obligation, incur any expense or settle or pay any claim. In the event of any settlement by the insured or agreement to pay any claim or any part thereof, the Exchange shall be deemed released from all liability in respect to such claims.” Again these are common policy provisions and have been repeatedly held valid. (General Accident, Fire & Life Assur. Corp. v. Louisville Home Tel. Co., 175 Ky. 96.) See cases collected in 34 A. L. R. 731, 43 A. L. R. 327, 71 A. L. R. 1467. Such provisions, however, impose duties as well as privileges upon the insurers. The Casualty Company here was notified of the suit and secured a copy of the complaint. On June 29, 1953 its attorney wrote counsel for the plaintiffs in the dram shop case: “I think your suggestion a good one that you furnish me the names of the lawyers who entered an appearance on behalf of each of these defendants so that we may in turn contact them and make our arrangements for sharing the burden of defense. We of course will be willing to sit down with all the parties concerned to see if there is any way of disposing of this matter as soon as we get our bearings and find out something about the nature of the case.” This letter alone indicates that the company did not intend to insist upon “the exclusive right to contest or settle the dram shop case.” Unfortunately, however, the defendant did nothing further. It did not file an answer; it rebuffed all invitations to settle the case; it merely sat back and waited. Finally on April 1, 1954 almost a year later it notified its insureds that it did not intend to defend the suit in accordance with the terms of the policy. In the meantime the insured had the alternative of allowing a default judgment to be taken against them which might involve liability in addition to that covered by insurance, or of filing an answer and participating in settlement negotiations and defending the suit. Actually no alternative existed. The pleadings filed by the insureds were necessary because of the Casualty Company’s failure to act. The latter could have protected itself by promptly disclaiming any duty to answer or defend, if it felt that no obligation for it to do so remained at that time. Instead it did nothing. Thus it rather than the insureds were guilty of inaction so far as the provisions of the policy now under discussion are concerned. Nor can the insureds be condemned for participating in settlement negotiations with the plaintiffs and other insurance companies. The Barnetts settled only their liability to the plaintiffs in the dram shop case during the time the other companies were on the risk and insulated themselves personally from liability during the time the Casualty Company was on the risk.

The Casualty Company contends, however, that the Barnetts were guilty of fraud and collusion in participating in the settlement negotiations and particularly in agreeing as a part of the settlement to defend the declaratory judgment action brought by the company. It therefore insists that because of this it was relieved of its obligation to defend under the policy. An examination of the proof however does not support this contention. It would appear, instead, that the Barnetts, through their attorney, made repeated efforts to induce the Casualty Company to participate in the various conferences that took place. It knew, or with little effort could have learned, what occurred at every step in the proceedings, and by filing a declaratory judgment suit the company assumed an adverse position which the Barnetts were compelled to contest.

We have examined all of the arguments furnished by the Casualty Company supporting its conclusion that its insureds violated the provisions of its policy giving to the company complete and exclusive control of the defense of any suit brought against them. We find, instead, that the company by its inaction waived any rights that they may have reserved therein. While our Supreme Court has not passed on this precise question, courts in many jurisdictions have so held in similar situations. (Krenitsky v. Ludlow Motor Co., 276 App. Div. 511, 96 N.Y.S.2d 102; Witt v. Universal Automobile Ins. Co. (Tex. Civ. App.) 116 S.W.2d 1095.) See also eases collected in A. L. R notes cited above.

We believe the Circuit Court correctly found, as a matter of law, that no violation of the provisions of the policy now under discussion occurred and properly withdrew the issues involved from the jury.

The Barnetts in their answer to plaintiff’s amended complaint in the dram shop case asserted that the cause of action alleged in the complaint was separate and distinct from that alleged in the original complaint and was then barred by the statute of limitations. This issue was again raised by the Casualty Company in this suit. We believe it was without merit. The original complaint in the dram shop case sought to recover under both Secs. 131 and 135 of the Dram Shop Act and prayed for both actual and exemplary damages. The amended complaint sought recovery for actual damages under Sec. 135 which was a part of the cause of action alleged originally. The Circuit Court therefore did not err in holding that the statute of limitations was not a defense. (Geneva Const. Co. v. Martin Transfer & Storage Co., 4 Ill.2d 273.)

Plaintiffs and their counsel have complained here of the repeated charges of malfeasance, fraud and collusion made in the Casualty Company’s brief and point out that such charges are serious, that they imply stealth and dishonesty and should not be made light. (Mock v. Higgins, 3 Ill.App.2d 281.) Litigants and their attorneys are of course to interpret the evidence in a manner most favorable to their own theory of the case but this cannot excuse the making of rash and intemperate statements.

The judgment of the Circuit Court of Champaign county in withdrawing the various issues from the jury and directing it to return a verdict for the plaintiffs was proper. In view of this we have not passed on the legal sufficiency of the post-trial motions made by the Casualty Company as requested by plaintiffs in their briefs.

The judgment of the Circuit Court of Champaign county is affirmed.

Judgment affirmed.


author: PRESIDING JUSTICE McCORMICK

text:
    Aleen B. Ragen, Appellant, v. Edward J. Bennigsen, Appellee.
    Gen. No. 46,769.
    First District, Second Division.
    May 29, 1956.
    Released for publication June 19, 1956.

      Wisch and Crane, of Chicago, for appellant; James E. Brown, and Leonard Kravets, both of Chicago, of counsel.
    Murphy, Pearson and O’Connor, of Chicago, for defendant-appellee.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Judgment was confessed in favor of plaintiff in the amount of $38,322.22 on May 20, 1953 in the Superior Court of Cook county in an action based on a complaint and cognovit. Subsequently the defendant filed a motion and affidavit to vacate or open up the judgment, to which affidavit the plaintiff filed a reply, and on June 3, 1953 the court ordered that the judgment be opened, the cause be set for hearing and that the judgment stand as security. A hearing was had before the court and on May 26, 1955 the trial court sustained a motion of the defendant to find the issues for the defendant at the close of plaintiff’s evidence, from which judgment this appeal is taken.

It appears from the evidence that the notes in question were executed by the defendant on December 27, 1941 and were delivered by him to James M. Ragen, Jr., together with a contract which related to the purchase of an interest in a partnership known as Gulf Stream Printers. In the complaint the plaintiff states that “the said James M. Ragen, Jr., for value received, afterwards negotiated the said notes by delivering the same to the plaintiff.” On July 3, 1952 the plaintiff, Aleen B. Ragen, was divorced from James M. Ragen, Jr. and at some time close to that date an agreement between the Ragens with reference to property rights, with a list of assets attached, was executed.

In the affidavit of the defendant in support of his motion to open up the judgment, the defendant stated, among other things, that on July 3, 1952 the plaintiff was divorced from the said James M. Eagen, Jr. On information and belief the defendant further stated that the plaintiff found the notes concerned herein in the personal belongings of James M. Eagen, Jr. and initiated a judgment by confession without any right, title or interest to the said notes. Defendant further stated that the plaintiff is not the bona fide owner and holder of the said notes; that at the time of the divorce the said James M. Eagen, Jr. filed a list of securities which formed a part of the divorce settlement; that “a review of said list of securities does not indicate that the affiant was indebted to said James M. Eagen, Jr.”; that subsequently there was a complaint in the nature of a bill of review filed by the plaintiff in the Superior Court of Cook county to which was attached an exhibit A, “in which Exhibit was set forth the assets assigned by James M. Eagen, Jr.; that nowhere in said Exhibit does it appear that said notes were assigned to plaintiff.” Defendant also alleged the defense of payment.

Plaintiff filed a reply sworn to by her attorney, in which she admits the divorce and that the list of securities filed by James M. Eagen, Jr. did not indicate that the defendant was indebted to Eagen, and denied in toto the allegations in the answer with reference to the ownership of the notes and payment, as well as the allegation with reference to the complaint in the nature of a bill of review.

Subsequently the defendant filed a motion to dismiss the action on the ground that the notes here sued upon are not bearer notes in that said notes were payable “to the order of bearer” and not “to bearer,” which motion the court denied.

Plaintiff here urges that the trial court erred in refusing to admit the notes in evidence before the plaintiff proved ownership thereof. On the hearing, before any evidence was introduced, there was considerable discussion between the court and counsel as to who had the duty of proceeding and as to what proof was necessary. The plaintiff suggested that the execution of the notes not having been denied, the notes should be admitted in evidence, which would make out a prima facie case in favor of the plaintiff; that the law is, that once a bearer note in the hands of a holder is produced, there is no necessity for the plaintiff to prove either that she was the owner of the note or a holder in due course. During this discussion the court stated that ownership would have to be proved as a part of plaintiff’s case, and counsel for the plaintiff then said that if the court wanted him to he would put in that proof. The plaintiff took the stand and subsequently there was a further discussion with reference to the order of proof. The court then stated that while it was undoubtedly the rule that the production in open court of bearer notes by the plaintiff would ordinarily be sufficient evidence of the ownership of the notes, because of the fact that there were allegations in the pleadings indicating that the notes were delivered originally to James M. Hagen, Jr. and that he negotiated the notes by delivery to the plaintiff, the burden was on the plaintiff not only to produce the notes in court but to prove ownership; whereupon plaintiff’s counsel stated he would proceed.

Plaintiff then testified that the notes in question were originally the property of her former husband, James M. Hagen, Jr.; that she found them in her home and took physical possession of them after she had received her divorce and that she did not know whether or not the notes had been paid; that at the time of the divorce an agreement captioned “Agreement, Assignment and Conveyance” was executed by her and James M. Hagen, Jr., and she identified a document marked plaintiff’s exhibit 1 as a photostatic copy of such agreement, which she offered in evidence. Upon the objection of the defendant that the original he produced or accounted for, the court refused to admit plaintiff’s exhibit 1 in evidence. The notes were then offered in evidence and the court stated that he would overrule the objections and admit them, giving as his reason therefor that their admissibility was “governed by the fact that they had been executed and they are bearer notes and they have been in her physical possession and she has testified as to how they came into it. The fact that they came into physical possession does not mean that she is the owner. . . . Counsel sometimes seem to get in mind that when something is admitted into evidence, the legal effect is determined at the same time. It is not.”

On cross-examination plaintiff testified that there was no written contract nor any verbal commitment between her and her former husband concerning the notes other than the agreement to which we have referred, plaintiff’s exhibit 1; that she found the notes in question among papers belonging to her husband which were in the former matrimonial domicile, which she was then occupying.

In our view of the case it is not necessary to determine whether or not the court was in error in the view which he took of the law. Following the discussion between court and counsel as to the necessity of proof of ownership of the notes by the plaintiff, the plaintiff did not offer the notes and obtain a ruling from the court as to whether or not they would be admitted without proof of ownership. Nothing was done except that a conversation took place between counsel and the court. Such procedure does not amount to an offer of evidence, and the remarks of the court did not amount to a refusal to admit evidence. There could be no refusal to admit that which has not been offered, and counsel cannot by engaging in a mere conversation with the court, even though it may relate to procedure, or by merely stating what he desired to do, get a ruling by the court upon which he can predicate error. Chicago City R. Co. v. Carroll, 206 Ill. 318, 328. By subsequently following the court’s suggestion and proceeding to prove ownership plaintiff waived whatever right she had to object to any allegedly erroneous ruling of the court. Ringholm v. Fitzgerald, 208 Ill. App. 268; Huling v. Century Publishing & Engraving Co., 108 Ill. App. 549. Where an issue is joined upon the question of ownership, the burden in the primary sense rests upon the plaintiff to prove ownership, and this is true in spite of the fact that possession by the plaintiff of a bearer note may raise a presumption of ownership which would make out a prima facie case. Such presumption would only affect the burden of going forward with the evidence. Franklin Bank v. St. Louis Car Co., 321 Mo. 199, 9 S.W.2d 901; Pierik v. Mueller, 201 Ill. App. 108.

When evidence is introduced either by the plaintiff or defendant which is sufficient to rebut the presumption the plaintiff must sustain the primary burden of proof and show that he is the owner of the note. Here, before the notes were offered in evidence, the plaintiff testified that she had acquired physical possession of the notes through finding them among the papers of her divorced husband. The effect of plaintiff’s testimony as to how the notes came into her possession was sufficient to rebut any presumption which had attached or came into existence because of her possession of a negotiable instrument payable to bearer. In Balch v. English, 247 Ill. App. 429, a suit was brought on bearer bonds. In that case the plaintiff testified that her deceased father, two or three months before his death, had stated to her that he had expended a lot of money for treatment and had used up his ready cash and he gave her the bonds and told her to cash them; that later she talked to her husband and he told her not to cash them and said he would give her any ready money she needed, which he did. She put the bonds away and did not take them out until about a year later. The defendants contended that the plaintiff had proved by her own testimony that she had no title to the bonds, that they belonged to her father at the time of his death, and that at the time of the suit they belonged to his estate; that she was an agent without interest to collect the bonds and pay the bills of her father with the proceeds; that the death of her father put an end to the agency; and that she cannot maintain the present suit. The court held that on the evidence the bonds were the property of the father and that the plaintiff had no interest in them except that her father made her his agent for the purpose of collecting the bonds and paying the bills with the proceeds. The court says:

“In the present case the plaintiff is suing as the legal owner of the notes or bonds and the evidence shows clearly that she is not the owner of the bonds or notes and that the same belong to the estate of the deceased. If the defendants were to pay the judgment in the present case, that fact would not bar an action by the legal representatives of the estate of the deceased. (Garber v. Myers, supra.) A defendant has a right to require that there shall be such a plaintiff as will make the recovery a bar to any other action by another for the same debt. (Parks v. Brown, 16 Ill. 454, 455.)”

The same rule is applicable here, that in order to make a case the plaintiff must prove ownership of the notes. That this was recognized by the plaintiff is evident from the fact that she tried her case in the trial court upon the theory that she derived her title from an assignment of the notes to her by her divorced husband.

After the court had correctly refused to admit the photostatic copy of the alleged assignment, plaintiff’s exhibit 1, the plaintiff attempted to lay the necessary foundation for its admission. She testified that she did not have the original and that the photostatic copy of the agreement (plaintiff’s exhibit 1), which nowhere appears in the record, was one of several copies which she had had made. Her counsel then said that he thought the original of the document was in the Appellate Court because the case (the divorce proceedings) had been taken to the Appellate Court. The plaintiff further testified that she had brought the agreement to her home sometime close to the time at which it was executed; that since that time she had moved all her furniture and personal belongings twice and on each occasion into smaller apartments; that she could not say definitely whether the agreement was one of the things destroyed in her packing in preparation for the first move from her Lake Shore apartment to an apartment on Stone street. She also testified that she had the agreement when she moved from the Lake Shore apartment, but that she did not recall seeing the agreement at the Stone street apartment; that she had brought all her papers down to the office of Zimmerman and Norman, her then attorneys, in the fall of 1952; that she did not remember whether or not she brought the agreement. She also testified that when she separated the papers in her Lake Shore apartment she put all the papers of Mr. Hagen into a large carton and stored them at Werner Bros.-Kennelly warehouse and that to the best of her knowledge they are still in storage and the materials there are stored in her name. She further stated that she twice made a search of her entire home and did not find it. She also testified that she had been represented by attorneys in the divorce proceedings who had assisted in the preparation of the agreement. She contacted neither of them to find out if they had an executed original of the agreement, nor were those attorneys called as witnesses in the hearing. The plaintiff also testified that she had made no search of the papers stored at Werner Bros.-Kennelly warehouse. There is nothing in the record to show that a search was made by Zimmerman and Norman among the papers which they had, nor were they called as witnesses. Nor is there anything in the record to show that an examination was made with reference to the Appellate Court records in the divorce case.

After this evidence was introduced, she again offered in evidence the purported agreement marked as plaintiff’s exhibit 1. The court refused to admit it, on the ground that the plaintiff had not laid a proper foundation for introduction of secondary evidence. The rule with reference to the introduction of secondary evidence is well stated in a case cited by plaintiff, People v. Wells, 380 Ill. 347, where the court, in discussing an offer in evidence of a photo static copy of a document, says:

“In order to let in secondary evidence of contents of a written instrument, the person to whose possession it was last traced must be produced unless this is shown to be impossible, in which case search among his papers must be proven if that can be done. In all events search must be made for the paper with the utmost good faith and the search must be as thorough and diligent as if the rule were that all benefit of the paper would be lost unless it be found.”

In the evidence before the trial court no search is indicated of three places where the original document might have been. The trial court correctly held that the plaintiff had failed to lay the necessary and proper foundation for the introduction of the photostatic copy as secondary evidence.

Plaintiff offered and the court admitted in evidence as exhibit 4 a document which was recorded in the office of Recorder of Deeds on March 5,1953. This document was captioned “Agreement, Assignment and Conveyanee,” was purportedly entered into on June 30, 1952 between the plaintiff and James M. Ragen, Jr., and was signed by both of them. Among other things it provides that James M. Ragen, Jr. represents and warrants to the plaintiff that the list which was attached thereto as exhibit A is a full and complete list of all his assets, and that he agrees to assign and convey to the plaintiff all of his right, title and interest in all property of any kind owned by him except such items as are set forth in the list attached thereto as exhibit A. The document also contains provisions with reference to property settlement, alimony and child support in the event a decree of divorce was entered in the case then pending between the parties, and attached thereto was a one-page list of assets which did not include the notes in question. In admitting it over the objection of the defendant, whose counsel stated that it varied from the copy of the instrument which was attached to the complaint in the nature of a bill of review, in that the bill of review contained an exhibit A consisting of ten sheets, while the exhibit offered had only one sheet, the court said: “I am going to overrule the objection and admit it into evidence and in so doing the record should be quite plain that it is accepted, not as conclusive proof of what agreement was entered into on this date of June 19, 1952, but as conclusive proof of what was presented to the Recorder’s Office and was recorded on that day.” Nowhere in the record does it appear that plaintiff testified that exhibit 4 was a true copy of the original agreement entered into between the parties and of which plaintiff’s exhibit 1 purports to be a photo static copy.

It cannot be held that exhibit 4 was the same as exhibit 1, or is a copy of the original assignment. Unless this is shown, exhibit 4 has no evidentiary force. Exhibit 1 does not appear in the record and we have no way of knowing what its contents were. Exhibit 4 consists of only five pages, and it is apparent from remarks of plaintiff’s counsel and the testimony of plaintiff that the two exhibits varied. The trial court, who had the opportunity to examine and compare the two exhibits, refers to exhibit 1 “including the last 7 or 8 or 9 pages.” The court also stated that Mrs. Eagen had testified that exhibit 1 had nothing attached to it at the time she signed it; that she also testified that it had “all of the pages which are attached to plaintiff’s exhibit 1 when it was delivered to her . . . In addition to that, it is noted that there has already been admitted in evidence what purports to be a copy of this agreement which has an entirely different exhibit attached to it, an entirely different list of assets. That document has not [sic] been recorded with the Recorder of Deeds of Cook County and it is further noticed that the very nature of this assignment obligation — that is, that it is an assignment of obligation of omitted matters, not of listed matters and for that reason, the Court feels that a greater degree of particularity should be made to show that the document proposed to be admitted into evidence is a true and exact copy, for the omission of anything with reference to it may change its entire meaning . . .” Under those circumstances, with nothing before us to indicate the contents of exhibit 1, which plaintiff testified to be a true and correct copy of the original agreement, and with the apparent variance between that copy and plaintiff’s exhibit 4, it cannot be said that exhibit 4 can properly be considered as being a true copy of the original agreement.

The decree of divorce between the Ragens was admitted in evidence. The only reference in the decree to any agreement made between the parties was a statement that there had been an agreement entered into concerning the property owned by each of them, as well as an agreement as to alimony, support money etc., and that both parties had made full disclosure to each other of all the property owned. The decree provides for the divorce of the parties and sets out in detail provisions for alimony and support money.

Plaintiff further urges that the defendant had in his affidavit filed in support of his motion to open up the judgment admitted that the notes in question were not listed in exhibit A which was attached to the agreement as to property rights allegedly entered into between the parties. The record does not bear out such a contention. All that was said in the affidavit of the defendant was that a review of the list of securities filed by James M. Ragen, Jr. as a part of the divorce settlement did not indicate that the affiant was indebted to James M. Ragen, Jr. and that with the complaint in the nature of a bill of review which had been filed by the plaintiff there was attached an exhibit A which did not show that the notes were assigned to plaintiff. That statement does not constitute an admission that the notes in question were not listed in exhibit A as urged.

Plaintiff relies upon the alleged error of the court in rejecting her exhibit 1 purporting to be a photostatic copy of the original agreement. Counsel has not seen fit to include that exhibit in the record. It has been held repeatedly that where oral evidence is offered on direct examination and the court sustains an objection to its admission, the reviewing court cannot consider the question as to whether the trial court erred in its ruling unless an offer of proof was made and the rejected evidence thereby brought into the record. Chicago City R. Co. v. Carroll, supra; Grosh v. Acom, 325 Ill. 474, 490. The same rule applies to documents offered, the admission of which is refused by the court. Without the document before us it is impossible for us to say what, if anything, could be proved by it. Where a party urges error in the trial court’s refusal to admit evidence, unless he incorporates the refused evidence in the record, the reviewing court would be justified in refusing to consider the question as to whether or not the trial court was in error. People v. Massey, 400 Ill. 262, 264; Kraft v. Holzmann, 206 Ill. 548, 552. In spite of this omission we have carefully considered this question and find there was no error in the ruling of the court in refusing to admit plaintiff’s exhibit 1 in evidence.

The plaintiff relies on the case of Balch v. English, 261 Ill. App. 29, which was a suit brought by the administratrix of the estate after the court in the case of Balch v. English, 247 Ill. App. 429, had reversed the judgment of the trial court on the ground that the evidence showed that the bonds, as between the plaintiff therein and the estate of her father, were the property of the latter. From the opinion in the second Balch case it appears that the bonds in question had been purchased by a candy company; that subsequently the premises of the candy company were burglarized and the bonds stolen; that the bonds in a way not indicated came into the hands of the deceased. The defendant pleaded, among other things, that the plaintiff’s testator did not take the bonds in good faith or for value and was not, and is not a holder in due course; that the plaintiff’s testator had notice of defects in the title of the person negotiating the bonds; and that the plaintiff and her testator acquired no title thereto. The trial court held that the plaintiff had failed to prove that she was a bona fide holder in good faith, for value, and without notice of the theft. The Appellate Court reversed the trial court, relying upon section 59 of the Negotiable Instruments Act, Cahill’s Ill. Rev. St. ch. 98, par. 79 (1929) as follows:

“Every holder is deemed prima facie to be a holder in due course; but when it (is) shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. But the last mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.”

The court held that under the statute the showing on the part of the defendant that the title to the instruments was defective as against some intermediate indorsee, standing alone, is not sufficient to shift the burden of proof to the plaintiff inasmuch as it was admitted that there was no question raised as to the good faith or honesty of the administratrix in her holding of the bonds, nor was there anything in the evidence which would affirmatively establish notice of the defect in title or lack of good faith. In the instant case the evidence showed affirmatively that the plaintiff had full knowledge of her lack of title except as she could affirmatively establish it by virtue of an assignment from her former husband. In any case, in the matter before us the question is not a question of whether the plaintiff is a holder in due course but a question as to whether or not the plaintiff is the owner of the negotiable instruments upon which suit is brought, and the evidence of the plaintiff negatives the possibility of her having been a holder in due course since it shows that she had taken physical possession of the notes in question after maturity.

In her briefs plaintiff treats the alleged assignment, referred to as plaintiff’s exhibit 1, as though the terms, provisions and contents of the same were properly included in the record, and in her abstract she sets out those provisions, as well as the provisions contained in plaintiff’s exhibit 2, which was a purported copy of the complaint in the nature of a bill of review, neither of which exhibits was admitted in evidence. Neither of these documents is incorporated in the record. An abstract of the record is, as the name implies, a condensed version of matters appearing in the record which is prepared by counsel and submitted to this court under its rules. Abstracts are required for the convenience of the reviewing court and to avoid the necessity of examining the record. An abstract should he accurate and should contain only matter appearing in the record. It is highly improper, and deserving of censure, for counsel to present to the court an abstract of the contents of documents which nowhere appear in the record.

The plaintiff failed to prove ownership of the notes. As we have indicated, such proof was necessary in order to enable her to recover. The judgment of the Superior Court of Cook county is affirmed.

Judgment affirmed.

ROBSON and SCHWARTZ, JJ., concur.


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    Firemen’s Insurance Company of Newark, New Jersey, Plaintiff Below, v. Dee Newell et al., Defendants Below, Dee Newell, and Sam Lazarus, Appellees. On Appeal of Marek Kraus, Individually and as Trustee, and Security Finance Corporation, Appellants.
    Gen. No. 46,795.
    First District, Second Division.
    May 29, 1956.
    Released for publication June 19, 1956.

      Love & Love, of Chicago, for defendants-appellants and appellants; Ward H. Harris and Wenzel J. Love, both of Chicago, of counsel.
    Lyle, Havey & Gager, of Chicago, for appellees.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

An interpleader suit was filed by the Firemen’s Insurance Company of Newark, New Jersey, to enable the court to determine who was entitled to $8,107.94 which the company admitted it owed under a policy of fire insurance. The court in its decree found in favor of defendants Dee Newell and Sam Lazarus and entered judgment against defendants Louis Seiden, Marek Kraus, as trustee, and Security Finance Corporation, jointly and severally, in the sum of $1,689.70, which included $550 for interest at the rate of five per cent on the sum of $8,107.94 which had been deposited with the court by its order of December 8,1953, from the date of deposit to the date of judgment, as well as costs in the sum of $1,139.70.

Defendants Seiden, Kraus and the Security Finance Corporation filed notice of appeal. After the appeal was filed in this court Seiden withdrew from the appeal. The only objection urged in this court by Kraus and the Security Finance Corporation is to the allowance of interest and costs against them.

The bill of interpleader was filed against defendants Dee Newell, Sam Lazarus, Polish Roman Catholic Union of America, Faustina Gardner, Louis Seiden, Marek Kraus, individually and as trustee, and Security Finance Corporation. Newell,-Lazarus, Seiden, Kraus and the Security Finance Corporation filed answers to the bill of interpleader. Newell filed a counterclaim. Gardner was defaulted for want of an answer, and subsequently she was permitted by leave of court to file an answer to Newell’s counterclaim and also to file a counterclaim, which at the time of the hearing she indicated she had not authorized and which she did not pursue. Seiden filed an answer to Newell’s counterclaim. The claim of Seiden, Kraus and the Security Finance Corporation against the insurance fund was predicated upon Gardner’s right, if any, to the fund.

The case was referred to a master in chancery, and after a protracted series of hearings he found that on September 1, 1953 a loss by fire occurred at the premises located at 2425 West Jackson boulevard, Chicago, which was adjusted in the amount of $8,107.94, the amount at issue in the suit; that at the time of the fire Dee Newell was the fee simple owner of the premises and Faustina Gardner had no title then nor at the time of the recording of the mortgage on the property under which Kraus and the Security Finance Corporation claimed; that Gardner admitted that she had no right, title or interest in the premises, and made no claim to the proceeds of the insurance money; that the claim of Kraus and the Security Finance Corporation based upon their dealings with Gardner had no merit and they had no claim to the insurance proceeds; that Louis Seiden’s claim was based on the fact that he was engaged after the fire by Gardner to make certain repairs on the premises which he claimed to have made; that since Gardner at the time of the fire had no right, title or interest in the premises his claim would be against her individually and not against the proceeds of the insurance; that Sam Lazarus had been engaged by Dee Newell to adjust the fire loss and that by reason of such contract he is entitled to $810.79; that the Polish Roman Catholic Union of America claims no interest in the fund; that the necessity of the interpleader suit was caused by garnishment and other litigation initiated against the insurance company by Seiden, Kraus and the Security Finance Corporation. The master recommended that the costs of the proceedings should be assessed against Seiden, Kraus and the Security Finance Corporation jointly and severally, together with interest at five per cent on the fund deposited with the clerk of the court.

The objections filed to the report were overruled by the master, and standing as exceptions were also overruled by the court, which entered a decree in accordance with the report. The court found that the master’s fees amounted to $1,139.70, that interest on the fund deposited at five per cent from December 8, 1953 to the date of the judgment was $550, and entered judgment against Louis Seiden, Marek Kraus, as trustee, and the Security Finance Corporation, jointly and severally, in the sum of $1,689.70 together with interest.

Kraus and the Security Finance Corporation make no objection to the validity of the findings and only object to the judgment against them for costs and interest.

It is provided by the Illinois statute that the assessment of costs in a court of equity, where no provision otherwise is made by law, shall be in the discretion of the court (Ill. Rev. Stat. chap. 33, par. 18), and it has been consistently held that the award of costs rests in the discretion of the court (Fleming v. Dillon, 370 Ill. 325; Hill v. Alber, 261 Ill. 124). It is true that such discretion is reviewable and the finding of the trial court may be reversed if the discretion resting in him has in the opinion of the reviewing court been abused. Cahill v. Cahill, 402 Ill. 416. Here the defendant-appellants have not seen fit to incorporate in their abstract any of the evidence introduced and upon which the master based his recommendation with reference to the assessment of costs. A reviewing court will not search the record for the purpose of finding a cause for reversal. People ex rel. Rose v. Craig, 404 Ill. 505; Shumway v. Shumway, 357 Ill. 477; Raymond Drainage Dist. v. City Nat. Bank of Kankakee, 344 Ill. 186. The defendant-appellants could only succeed in their claim if they established an interest of Faustina Gardner in the insurance fund. Whatever alleged claim they had vanished into thin air unless such interest was established. It is to be noted that Gardner failed to file an answer to the original bill of interpleader; that she claimed no title to the property nor made any claim to the insurance fund before the master; that she practically repudiated the filing of the cross-bill' filed in her behalf, together with the answer filed to the cross-bill of Newell. Consequently the prolonging of the litigation could be said to rest squarely on the shoulders of Kraus, Security Finance Corporation and Seiden. Under those circumstances we find that the court did not abuse its discretion in taxing all of the costs against these three defendants; however, there was no justification for the entry of a joint and several judgment against them for the costs. Kraus and the Security Finance Corporation filed a joint answer, while Seiden filed a separate answer, to the complaint in the interpleader suit. Even if it was found that the relationship existing between Kraus and the Security Finance Corporation made their claim joint, it could not possibly be said that the claim of Seiden was anything but a separate and distinct claim. Seiden in no way based his claim upon any relationship with Kraus or the Security Finance Corporation. The costs should have been apportioned equally among the three defendants and the entry of a joint and several judgment against them for costs was improper and inequitable.

Interest is allowed in suits in chancery where warranted by equitable considerations. Here interest was awarded to the appellees on the theory that the defendant-appellants caused an unreasonable or vexatious delay of payment. The principle governing the award of interest differs from the rule governing the discretion of the court in apportionment and assessment of costs. It has been held that in order to have an unreasonable and vexatious delay which would authorize a court of chancery to award interest there must be something more than a mere delay of payment, and that the mere fact of appearing and defending a suit is not considered such delay. There must be some contrivance on the part of the litigant causing the delay which comes very close to actual fraud. McKey v. McCoid, 298 Ill. 566; Lewis v. West Side Trust & Savings Bank, 376 Ill. 23, 46; Imperial Hotel Co. v. H. B. Claflin Co., 175 Ill. 119, 124. In the case before us we do not find conditions of such a character as would justify an award of interest; nor, while the conduct of the defendant-appellants prolonged the litigation, can we say that except for their claim the plaintiff would not have filed a bill of interpleader. Interest should be disallowed.

In the brief of the defendant-appellants Kraus and the Security Finance Corporation it is pointed out that after the appeal had been filed in this court Louis Seiden withdrew as appellant, and subsequently Kraus and the Security Finance Corporation filed a motion supported by an affidavit asking us to construe a document attached thereto, which was entered into between Louis Seiden and Dee Newell, to be a release of all obligations owing by the defendant-appellants Kraus and the Security Finance Corporation to Newell. Counter-suggestions were filed thereto, and we took the motion with the case. Under the view of the case which we have expressed the motion becomes moot and is denied.

The amount of the judgment incorporated in the decree should be reduced by the sum of $550, which was the interest allowed. The decree of the Superior Court of Cook county is affirmed except as to the judgment entered against defendant-appellants in the amount of $1,689.70. This portion of the decree is reversed and the cause is remanded with directions to enter a separate judgment in the sum of $379.90 against each of the three defendants — the Security Finance Corporation, Marek Kraus, as trustee, and Louis Seiden. Costs of this appeal shall be borne one-third by appellees and two-thirds by appellants.

Affirmed in part; reversed in part and remanded with directions.

ROBSON and SCHWARTZ, JJ., concur.