Mut. Acc. Ass'n of the Northwest v. Jacobs

• Decision Date: 12 May 1892
• Citation: 31 N.E. 414,141 Ill. 261
• Parties: MUTUAL ACC. ASS'N OF THE NORTHWEST v. JACOBS et al.
• Court: Illinois Supreme Court

141 Ill. 261

31 N.E. 414

MUTUAL ACC. ASS'N OF THE NORTHWEST

v.JACOBS et al.¹

Supreme Court of Illinois.

May 12, 1892.

Appeal from appellate court, first district.

Petition by the Mutual Accident Association of the Northwest against B. F. Jacobs and Gilbert B. Shaw, assignees, to recover a special deposit made with Samuel A. Kean, defendants' assignor. Defendants obtained judgment, which was affirmed by the appellatecourt. Petitioner appeals. Affirmed.Albert H. Veeder

and Mason B. Loomis, for appellant.

Jesse A. Baldwin and Kraus, Mayer & Stein, for appellees.

The other facts fully appear in the following statement by CRAIG, J.:

This was a petition in the county court of Cook county brought by the Mutual Accident Association of the Northwest, in which it was alleged that on the 4th day of October, A. D. 1890, petitioner deposited with Samuel A. Kean the sum of $6,000 as a special deposit, to be held by Kean to indemnify himself and one Jesse H. Cummings from any liability that might be incurred by them, or either of them, by reason of their having signed an appeal bond (as sureties) in a case wherein one Emma A. Tuggle recovered a judgment against petitioner in the circuit court of McDonough county, from which judgment petitioner appealed to the appellate court; that at the time the $6,000 was so left with Samuel A. Kean as aforesaid, to wit, on the 4th day of October, A. D. 1890, he, Samuel A. Kean, was engaged in the banking business at the city of Chicago, in the county of Cook, aforesaid, under the name and style of S. A. Kean & Co., having his main banking office or place of business at No. 100 Washington street, in said city, and also having a branch banking office at Nos. 143 & 145 Adams street, in said city, which said branch was then operated and carried on by the Samuel A. Kean under the care and management of one Wesley L. Knox, as agent and manager for him; that your petitioner deposited the sum of six thousand dollars ($6,000) with Kean at his branch banking office or place of business, and then and there received of and from said Kean, by and through his agent and manager, the following certificate of deposit: ‘Chicago, Oct. 4, 1890. This is to certify that the Mutual Accident Association of the Northwest has deposited with Samuel A. Kean, of the county of Cook, state of Illinois, the sum of six thousand dollars, to be held by the said Kean upon the following conditions: Whereas, one Emma A. Tuggle, of the county of McDonough, recovered a judgment against the said accident company for the sum of five thousand dollars and costs, from which the said accident company have taken an appeal to the appellate court; and whereas, the said Samuel A. Kean and Jesse H. Cummings have signed the appeal bond in the said case: Now, therefore, this six thousand dollars deposited with Samuel A. Kean is to be held by the said Kean to indemnify himself and the said Jesse H. Cummings from any loss or liability incurred by them, or either of them, by reason of having signed said appeal bond; and, after the said Jesse H. Cummings, and Samuel A. Kean are fully discharged from all liability under said bond, then the said six thousand dollars is to be returned to the said Mutual Accident Association, but not otherwise. [Signed] S. A. KEAN & Co., Branch. WESLEY L. KNOX, Manager.’ It is further alleged in the petition that the $6,000 deposited is no part of the assets belonging to S. A. Kean, or to his estate but that the same was and still is the property of the petitioner, and placed in the hands of Kean as a special deposit on trust, with the distinct understanding between petitioner and Kean that said $6,000 was to be returned to petitioner by Kean as soon as said Kean & Cummings should be discharged from all liability under the bond, as appears from terms of said certificate. Petitioner prays that the said sum of $6,000 may be declared to be the property of petitioner, and a trust fund in the hands of Benjamin F. Jacobs, assignee of Kean, and that an order may be entered by the court directing him, the assignee, to pay, deliver, and return the same to petitioner, as soon as the said Samuel A. Kean and Jesse H. Cummings are discharged from all liability under the appeal bond. The assignees of S. A. Kean put in an answer to the petition, in which they admit the giving of the receipt as set out in the petition. Further answering, respondents deny that the said $6,000 was not and never became the property of the said Samuel A. Kean, and that it has been since said deposit, and still is, the property of the said petitioner, but aver the truth to be that the said deposit became at once, upon its receipt by him, the property of the said Samuel A. Kean. They further deny that the $6,000, or any part thereof, was in the possession of the assignee, and state that, immediately upon its deposit by the petitioner, the said sum of $6,000 became the property of said Kean, and was by him commingled with other moneys and property of the said Kean in said banking business, and used and paid out by the said Kean in the regular course of business.

CRAIG, J., ( after stating the facts.)

The $6,000 was not passed over to S. A. Kean in currency or other money, but, as appears from the evidence, the officers of the accident association drew a check payable to the order of S. A. Kean & Co. for $6,000 on the Union...