City Trust, Safe Deposit & Surety Co. of Philadelphia v. Lee

• Decision Date: 26 October 1903
• Court: Illinois Supreme Court
• Parties: CITY TRUST, SAFE DEPOSIT & SURETY CO. OF PHILADELPHIA v. LEE.

204 Ill. 69

68 N.E. 485

CITY TRUST, SAFE DEPOSIT & SURETY CO. OF PHILADELPHIA

v.LEE.

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Appellate Court, First District.

Action by Edward W. Lee against the City Trust, Safe Deposit & Security Company of Philadelphia. From a judgment of the Appellate Court (107 Ill. App. 263) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Louis L. Dent, for appellant.

Rice & O'Neil (Walter M. Howland, of counsel), for appellee.

HAND, C. J.

This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county in favor of the appellee for the sum of $1,075 upon a bond given by the appellant to indemnify the appellee from loss by reason of the dishonesty or fraud, amounting to larceny or embezzlement, of Thomas J. Morrow, who was in the employ of appellee as a collector. It appears from the evidence that appellee was the owner of certain buildings located in the city of Chicago, and that he employed Morrow to collect the rents thereon, which amounted to about $1,000 per month, for which service Morrow was to receive $10 per week in cash, the use of a flat in which to live, worth $20 per month, and a commission of 2 1/2 per cent. on the amount of rent collected. The application for the bond was in writing, and stated that Morrow was to receive as salary or commissions the sum of $85 per month, and provided the answers to questions contained in said application should be construed as warranties, and form the basis of the guaranty. It further appears that Morrow collected and failed to turn over to appellee rents to the amount of the judgment, converted the same to his own use, and absconded, and, appellant having failed and refused to indemnify appellee, this suit was brought.

The first defense interposed by appellant was that the answer contained in the application as to the compensation which Morrow was to receive for his services was false, and by reason thereof there could be no recovery, and it requested the court to instruct the jury that if they found appellant was induced to sign the bond by reason of the answer as to the amount of salary or commissions to be paid Morrow, that such answer was false, and that the defendant did not know that it was false at the time it issued the bond, then they should find for the defendant. This the court refused to do. The total amount of Morrow's compensation amounted to at least $85 per month, and under the answer ‘$85 per month’ to the question, ‘State amount of salary or commission to be paid the applicant,’ the compensation of Morrow might have been properly payable in a gross sum in cash or all as commissions, and the answer been truthful. The...