Pitsch v. Cont'l & Commercial Nat. Bank of Chicago

• Decision Date: 12 December 1922
• Docket Number: No. 14709.,14709.
• Citation: 137 N.E. 198,305 Ill. 265
• Court: Illinois Supreme Court
• Parties: PITSCH v. CONTINENTAL & COMMERCIAL NAT. BANK OF CHICAGO.

305 Ill. 265

137 N.E. 198

PITSCH

v.CONTINENTAL & COMMERCIAL NAT. BANK OF CHICAGO.

No. 14709.

Supreme Court of Illinois.

Oct. 21, 1922.

Rehearing Denied Dec. 12, 1922.

Action by Otto L. Pitsch against the Continental & Commercial National Bank of Chicago. From a judgment of the Appellate Court affirming a decree of the Circuit Court dismissing plaintiff's bill, he appeals.

Judgment of the Appellate Court and decree of the circuit court reversed, and cause remanded.Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; Jesse Holdom, Judge.

John W. Ellis and Albert E. Beath, both of Chicago (John A. Bloomingston and William F. Struckmann, both of Chicago, of counsel), for appellant.

Mayer, Meyer, Austrian & Platt, of Chicago (Abraham Meyer, and David F. Rosenthal, both of Chicago, of counsel), for appellee.

DUNN, J.

The Appellate Court for the First District affirmed a decree of the circuit court of Cook county which dismissed for want of equity a bill filed by Otto L. Pitsch against the Continental & Commercial National Bank of Chicago for an accounting. The judgment of affirmance was entered on March 7, 1922, at the March term of the Appellate Court, and on March 24 the court, upon petiton of the appellant, certified that the cause involved questions of law of such importance on account of principal and collateral interests involved that it should be passed upon by the Supreme Court, and at the same time ordered that an appeal be allowed on condition that the appellant file an appeal bond within 10 days. An appeal bond was not filed within 10 days, but on April 17, 1922, still in the March term of the Appellate Court, but 24 days after the order allowing the appeal, a motion by the appellant for leave to file an appeal bond instanter was allowed, and an appeal bond in accordance with the order of the court was presented, approved, and filed. The appellee did not move to dismiss the appeal, but in the brief filed argued that this court had no jurisdiction of the appeal, for the reason that the appeal bond should have been filed within 20 days after the granting of the appeal, that the court was without power to approve the appeal bond on April 17, 1922, and that its order purporting to do so was a nullity. Disregarding the question whether an objection to the court's jurisdiction of the appeal can be raised in this manner when the objection does not go to jurisdiction of the subject-matter, section 92 of the Practice Act (Hurd's Rev. St. 1921, c. 110) provides that appeals shall be prayed for and allowed at the term at which the judgment, order, or decree is rendered, and that the appellant shall file a bond within such time, not less than 20 days, as the court shall fix. The appellee contends that the time limited for the filing of the appeal bond having been fixed at 10 days, the appellant was required to file an appeal bond at farthest within the 20 days mentioned in the statute, and that an order extending the time for filing a bond could be made only before the expiration of the 20 days. The case of Hill v. City of Chicago, 218 Ill. 178, 75 N. E. 766, is cited in support of the last proposition. In that case an order allowing an appeal at the February term of the county court fixed the time for filing the bond at 30 days from the date of the order, February 28. The time expired on March 30, after the expiration of the February term. No bond was filed within the time, but on March 31 a bond was approved by the judge and filed with the clerk, and it was held that the court was without power to extend the time, and the right of appeal was lost by failure to comply with the condition. In this case the term at which the decree was entered and at which the statute authorized an appeal to be allowed was still continuing. The court had not lost jurisdiction of the cause, and the order approving the filing of the appeal bond and permitting it to be filed was in effect an extension of the time for filing the bond, which was within the power of the court, and this court has jurisdiction of the appeal.

The appellant was a notary public, who was employed from October 1, 1911, to December 31, 1918, by the appellee in protesting commercial paper for the appellee and its correspondents, and during that period devoted his time exclusively to such services. Previous to entering the appellee's service a written contract was executed between the appellant and the appellee, by which the appellant agreed to act as a notary in the matter of protesting commercial paper whenever required by the appellee, for which services the appellee agreed to pay him 12 1/2 per cent. of all protest fees received by it on commercial paper protested at its bank, whether protested by the appellant or some other notary. During all the time from October 1, 1911, to December 31, 1918, the appellee delivered to the appellant and another notary public, who received the same compensation, all such checks, notes, drafts, and bills of exchange as required protest, and they made protest of such instruments. This work required all the time of the appellant, and was done on the premises of the appellee, which furnished to the appellant desk room, records, stationery, telephone service, and everything used in his notarial work except his official seal. The appellee collected all the fees for notarial services rendered. Twice a month during the appellant's service the appellee had a settlement with the appellant, and paid to him 12 1/2 per cent. of the fees which it had collected, retaining 87 1/2 per cent. The bill was filed on February 10, 1919. The defendant set up the statute of limitations as a defense to all moneys received prior to February 10, 1914, and as to the residue answered that on the 29th day of July, 1913, and on the 15th day and the last business day of each succeeding month thereafter up to and including December 31, 1918, the appellant executed and delivered to the appellee a series of instruments in writing, all to the same effect and identical in words and figures except dates, whereby the appellant on such dates forever released and discharged the appellee from all claims up to the date of execution and delivery, and assigned to the appellee all sums due on the date of the execution and delivery of such instruments for fees earned as notary up to those respective dates. The following is a copy of one of such instruments:

‘Received from Continental & Commercial National Bank of Chicago, on the respective dates below indicated, the sums due me in full payment and satisfaction for all services rendered by me for said bank and all claims I may have or ever had against it up to and including such dates; and in consideration of the agreement by said bank to continue me in its employ at the same compensation for the next succeeding half month, to perform like services as those heretofore performed by me, and for other good and valuable considerations, I hereby release and discharge said bank from all claims and demands of every kind or nature which I had or might have against it up to and including said dates, and I hereby assign, transfer and set over to said bank all sums of money now due or owing to me from said bank for fees earned as a notary public in the half month preceding the respective dates set opposite my name.

1913

July. 29. O. L. Pitsch. [Seal.]

Aug. 15. O. L. Pitsch. [Seal.]

Aug. 28. O. L. Pitsch. [Seal.]

Sept. 15. O. L. Pitsch. [Seal.]

Sept. 30. O. L. Pitsch. [Seal.]

Oct. 15. O. L. Pitsch. [Seal.]

Oct. 31. O. L. Pitsch. [Seal.]

Nov. 15. O. L. Pitsch. [Seal.]

Nov. 30. O. L. Pitsch. [Seal.]

Dec. 15. O. L. Pitsch. [Seal.]

Dec. 31. ........ [Seal.]'

A separate instrument appears for each of the years from 1914 to 1918, inclusive, each bearing 24 signatures and 24 dates, being the 15th and the last days in each month. The appellee relies upon these instruments as an accord and satisfaction between the parties on the date of each instrument for the notarial fees claimed in the bill.

The claim of the appellant is for money had and received to his use by the appellee for notarial services rendered by the appellant. It is based upon his statutory right to the fees. The defense is not payment, but an accord and satisfaction, whereby the defendant twice each month during the five-year period within the statute of limitations accepted payment of one-fourth of the amount of his fees which the appellee had collected, in satisfaction of the full amount. (The proportion of the fees earned is really one-fourth instead of one-eighth, because in addition to one-eighth of his own fees he also received an amount equal to one-eighth of what the other notary earned.) In connection with the receipt for the money paid each time was included a release and discharge of all claims against the appellee to the date of signing and an assignment of all sums due from the appellee for...