Oulvey v. Converse

• Decision Date: 22 June 1927
• Docket Number: No. 17604.,17604.
• Citation: 157 N.E. 245,326 Ill. 226
• Parties: OULVEY v. CONVERSE et al.
• Court: Illinois Supreme Court

326 Ill. 226

157 N.E. 245

OULVEY

v.CONVERSE et al.

No. 17604.

Supreme Court of Illinois.

June 22, 1927.

Error to Appellate Court, Fourth District, on Error to Circuit Court, St. Clair County; George A. Crow, Judge.

Action by Josephine Oulvey against Harvey S. Converse and others. Judgment of the Appellate Court, affirming a judgment of the circuit court in plaintiff's favor, and defendants bring certiorari.

Reversed and remanded.

Farmer, J., dissenting.W. E. Knowles and T. M. Webb, both of East St. Louis, for plaintiffs in error.

C. E. Pope and H. F. Driemeyer, both of East St. Louis, for defendant in error.

THOMPSON, J.

In July, 1911, Henry T. Renshaw, who was engaged with his brother in the real estate and loan business in East St. Louis, loaned for Eugene Oulvey $9,000 to plaintiffs in error, Harvey S. and Fannie Converse. The loan was evidenced by a note payable to the order of Henry T. Renshaw, trustee, and by him indorsed to Oulvey. Plaintiffs in error paid the interest on the note to Renshaw until January 26, 1914, when $2,000 was paid on the principal. This payment of principal and all payments of interest were received by Oulvey and indorsed on the note. In January, 1915, plaintiffs in error made a new note in the sum of $7,000 and delivered it to Renshaw in payment of the balance due on the $9,000 note. When the new note was given, the old note, which was in possession of Oulvey, was not surrendered, and Oulvey had no knowledge of the new note. Renshaw sold the $7,000 note to Joseph Flach and converted the proceeds to his own use. Plaintiffs in error sold the mortgaged premises, and the purchaser paid $7,000 to Renshaw to satisfy the $7,000 note. To conceal his double dealing, Renshaw continued to pay interest to Oulvey on the balance of the $9,000 note. Oulvey died testate, and by his will bequeathed the note to his widow, Josephine Oulvey, who is defendant in error. In December, 1923, she brought an action in assumpsit against plaintiffs in error, alleging the making of the note and its indorsement to her husband, his death, and the bequest of the note to her. An affidavit of claim was filed with the declaration, and a copy of the note, together with the indorsements thereon, was attached to it. Plaintiffs in error filed a plea of non assumpsit and two special pleas, which were accompanied by affidavits of merits. There was a trial, and a judgment for defendant in error, which has been affirmed by the Appellate Court for the Fourth District. The cause is here on certiorari.

There are a number of questions presented on the record, but the view we take of the case requires the consideration of two only, namely, the sufficiency of the declaration and the competency of Henry T. Renshaw to testify.

[1][2] When Eugene Oulvey died, the legal title to the note passed to his personal representative. It did not pass to his widow under his will, and she had no right to bring an action to collect the amount due on the note without transfer of the title to her by indorsement of the personal representative. Leamon v. McCubbin, 82 Ill. 263;People v. Abbott, 105 Ill. 588;Illinois Conference v. Plagge, 177 Ill. 431, 53 N. E. 76,69 Am. St. Rep. 252;McBride v. Vance, 73 Ohio St. 258, 76 N. E. 938,112 Am. St. Rep. 723,4 Ann. Cas. 191; 2 Woerner on Administration (3d Ed.) § 199.

[3][4][5][6] In an action by one other than the payee of a note, the declaration must aver the assignment or the indorsement of the note, or must allege some other fact to show plaintiff's ownership. 4 Standard Procedure, 262; 14 Ency. of Pl. & Pr. 515. The necessity for such an averment is recognized in Higgins v. Bullock, 66 Ill. 37, and Simpson v. Ranlett, 2 Gilman, 312. There is no averment in the declaration in this case of the indorsement or assignment of the note to defendant in error by the holder of the legal title, nor is there an allegation of facts showing that she owns the note or is entitled to its proceeds. The declaration is clearly insufficient to sustain the judgment, and this defect in pleading may be availed of on error. Chicago & Eastern Illinois Railroad Co. v. Hines, 132 Ill. 161, 23 N. E. 1021,22 Am. St. Rep. 515. The omission to allege facts essential to the statement of a cause of action is not cured by verdict. Hartray v. Chicago Railways Co., 290 Ill. 85, 124 N. E. 849.

[7][8][9] On the trial plaintiffs in error offered the deposition of Henry T. Renshaw,...