First Nat. Bank v. Northwestern Nat. Bank

• Citation: 152 Ill. 296,38 N.E. 739
• Parties: FIRST NAT. BANK v. NORTHWESTERN NAT. BANK.
• Decision Date: 29 October 1894
• Court: Supreme Court of Illinois

152 Ill. 296

38 N.E. 739

FIRST NAT. BANK

v.NORTHWESTERN NAT. BANK.¹

Supreme Court of Illinois.

Oct. 29, 1894.

On rehearing. Affirmed.

For former report, see 29 N. E. 884.

BAKER, J.

In this action of assumpsit, brought by the Northwestern National Bank of Chicago against the First National Bank of Chicago, the issues were tried before the superior court of Cook county without a jury, and the court found the issues for the plaintiff, and assessed its damages at $2,454, and rendered judgment therefor against the defendant. Upon an appeal to the appellate court of the First district the judgment was in all things affirmed (40 Ill. App. 640), and thereupon the First National Bank of Chicago prosecuted this further appeal.

A preliminary question is raised by the appellee. It insists that all questions of fact are conclusively settled in its favor by the judgment of affirmance in the appellate court, and further, that no questions of law are so preserved in the record as that they can be reviewed in this forum. At the trial, appellant submitted to the court eight written propositions, ‘which it prayed should be held as law in the decision of the case.’ Section 41 of Practice Act (2 Starr & C. Ann. St. p. 1808; Rev. St. 1893, c. 110, § 42). The court ‘held’ propositions 1, 2, and 3, but refused to hold propositions [152 Ill. 301]4, 5, 6, 7, and 8, to be law applicable in the decision of the case; and to the action of the court refusing to hold said five last-mentioned propositions, and each of them, appellant then and there excepted.

In respect to propositions 4, 5, 6, and 7 it may well be said that they are not propositions of law, within the intent and meaning of section 41 of the practice act. They are, both in form and in substance, mere prayers or solicitations of appellant to the trial court to find particular facts for it ‘under the law and the evidence.’ The statute does not contemplate that under the cloak of written propositions of law a party litigant shall have the right to call upon the court to find in his or its favor seriatim all the special or particular facts involved in the evidence, and dehors the statute it is not a common-law function of a judge in a common-law action to make special findings of fact. The rule is ‘Ad quaestionem facti non respondent judices.’ Brovin, Leg. Max. (4th Ed.) p. 103; Altham's Case, 8 Coke, 155a. In Memory v. Niepert, 131 Ill. 623, 23 N. E. 431, the case was tried by the court below without a jury, and this court held that a proposition there asked was properly refused, and for the reason that no question of law was thereby raised; and so in the case at bar the trial court could not properly have done otherwise than refuse to hold the propositions 4, 5, 6, and 7.

The trial court also declined to hold proposition 8, tendered by appellant, and marked the same ‘Refused.’ That proposition reads as follows: ‘The court holds as matter of law that under the law and evidence the judgment in this case should be for defendant.’ There can be no question but that, if the case had been on trial before a jury, and appellant had moved the court to instruct the jury that under the law and evidence, and as matter of law, the verdict and judgment in the case should be for the defendant, then such motion would have been regarded as a motion in the nature of a demurrer to the evidence, and as raising a question of law for the decision of the court. In Bartelott v. International Bank, 119 Ill. 259, 9 N. E. 898, it was held that motions to exclude the entire evidence from the jury and motions to instruct the jury to find for the defendant are in the nature of demurrers to evidence, and that they admit not only all that the testimony of the plaintiff proves, but also all that it tends to prove. And it was also there held that a motion to exclude the evidence, or to instruct the jury that they should find for the defendant, may be made after the evidence is heard on behalf of the defendant. To like effect is the case of Railway Co. v. Velie, 140 Ill. 59, 29 N. E. 706. In cases where the parties litigant agree that both matters of law and matters of fact may be tried by the court without a jury, and the only question at issue is the question of law whether the uncontroverted facts constitute a cause of action, no good reason is perceived why the defendant may not submit to the court such a proposition as proposition 8 now before us, to be ‘held’ or ‘refused’ by the court, as the court shall be of opinion the law of the case is, and why the submission of such a proposition should not be regarded as in the nature of a demurrer to evidence, and as sufficiently raising and preserving the question of law involved for re-examination in a court of review. The exact question now before us does not seem ever to have been passed upon by this court. But the case of Railroad Co. v. Reich, 101 Ill. 157, was tried by the court without the intervention of a jury, and upon the appeal to this court, in discussing the several propositions of law that were refused at the trial, we used this language in regard to one of them: ‘The fourteenth proposition was properly refused, because there was evidence tending to sustain a cause of action. It asserts simply that under the evidence there can be no recovery. There was evidence tending to sustain a recovery. Its weight was for the court. The plain implication from this language is that the propriety of holding or refusing a written proposition such as that now before us will depend upon the answer given to the question whether or not there is evidence in the record which fairly tends to establish a cause of action. The conclusion to be deduced from that which we have said is that we consider this case properly before us for the conisderation of the question, as a question of law, whether the evidence tends to show a right of recovery in appellee.

It may be well, in order to clearly understand the nature of the case upon which appellee relies, to briefly state the substance of its declaration. The declaration contains ten counts, nine of which are special, and each of these special counts describes a different instrument in writing, and the tenth count is a common indebitatus assumpsit count for interest. The first count avers that on May 17, 1887, ‘a certain person’ made and drew by and under the name and style of ‘W. S. Chapman, Treas.,’ a certain draft or order in writing for the payment of money, commonly called a ‘check on a bank,’ with the heading, ‘Central Union Telephone Company,’ and said check being numbered with the number 13,006, and caused said check to be countersigned by and under the style of ‘Geo. L. Phillips, Prest.,’ and directed said check to the appellee, and thereby requested it to pay $300 to C. H. Wilson, who was described therein as ‘C. H. Wilson, A. G. Supt.,’ and that afterwards some one to plaintiff unknown, intending to defraud C. H. Wilson, and without the consent, knowledge, or ratification of Wilson, and without the knowledge of plaintiff, forged on said check the name of ‘C. H. Wilson, A. G. Supt.,’ and caused said check, so indorsed, to be placed in the hands of Chapin & Gore, who in turn indorsed it, ‘For deposit in the First National Bank to the credit of Chapin & Gore,’ and delivered it to the appellant, who in turn indorsed it, ‘Pay through Chicago Clearing House only to First National Bank,’ and through said clearing house presented said check to appellee for payment, and thereby vouched and warranted to appellee that the indorsement of C. H. Wilson on said check was the genuine indorsement of said Wilson; and that appellee, confiding in said warranty of appellant, and in consideration thereof, and being ignorant that such indorsement was forged, paid said check to appellant, and took up the check. That appellee did not discover the fact of such forgery until July 25, 1887, when it notified appellant, tendered to it the check, and demanded that appellant should make good its warranty, and should repay to appellee the amount of the check, by means whereof appellant became liable to pay, promised to pay, and afterwards refused, etc. The averments of the second count are substantially the same as those of the first count, except that the check is dated May 31, 1887, is numbered 13,051, and is for $250. The averments of the third count are substantially the same as those of the first count, except that the check is dated June 13, 1887, is numbered 13,086, and is for $200. The averments of the fourth count are substantially the same as those of the first count, except that the check is dated June 13, 1887, is numbered 13,087, and is for $200, and except, further, that the count contained the additional averment that on June 30, 1887, appellee accepted said check, and wrote on the face thereof these words: ‘Accepted payable through Chicago Clearing House, June 30th, 1887. North Western National Bank. Sheahan, Teller.’ The averments of the fifth count are substantially the same as those of the first count, except that the check is dated July 5, 1887, is numbered 13,145, and is for $200, and except also that there is no averment that it is countersigned by the under the style of ‘Geo. L. Phillips, Prest.’ The averments of the sixth count are substantially the same as those of the first count, except that the payee named in the check is ‘F. P. Ross, Mgr.,’ and except that the check is dated May 31, 1887, is numbered 13,049, and is for $200. The seventh count is the same as the sixth count, except that date of check is May 1, 1887, and its number is 13,050, and it is for $300.10. The eighth count is the same as the sixth count, except that date of check is June 18, 1887, and its number is 13,085, and it is for $200. The ninth count is the same as the sixth count, except that date of check is July 5, 1887, and its number is 13,147, and its amount is $200, and except also that it contains an additional averment that...