Schultz v. American Nat. Bank & Trust Co.

• Decision Date: 03 August 1976
• Docket Number: No. 75--330,75--330
• Citation: 352 N.E.2d 310,40 Ill.App.3d 800
• Parties: Marie C. SCHULTZ and Lewis M. Schultz, Plaintiffs-Appellants, v. AMERICAN NATIONAL BANK AND TRUST COMPANY and Frank C. Potter, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 310

352 N.E.2d 310

40 Ill.App.3d 800

Marie C. SCHULTZ and Lewis M. Schultz, Plaintiffs-Appellants, v. AMERICAN NATIONAL BANK AND TRUST COMPANY and Frank C Potter, Defendants-Appellees.

No. 75--330.

Appellate Court of Illinois, Second District, Second Division.

Aug. 3, 1976.

Rehearing Denied Aug. 27, 1976.

Julius Abler, Libertyville, for plaintiffs-appellants.

Wasneski, Yastrow, Kuseski & Flanigan, Waukegan, for defendants-appellees.

DOXON, Justice:

Plaintiffs Marie and Lewis Schultz filed suit to cancel certain notes, deeds and security agreements on the grounds that there was no consideration given to plaintiffs. By answer defendant Bank denied a lack of consideration. Plaintiffs and the defendant filed motions for summary judgment supported by affidavit. The Circuit Court of Lake County, after determining that no genuine issue of fact existed, entered summary judgment against plaintiffs.

Plaintiffs were shareholders, directors and principal officers of Merchants Moving and Storage, Inc. Mrs. Schultz was president of the corporation. As of April 3, 1972 the corporation was indebted to the Bank on a note of $10,000 plus accumulated interest of $192.87. The debt was due but the corporation was unable to pay. Plaintiff on April 3 executed an $11,500 note in favor of the Bank. As consideration for the $11,500 note the bank applied $10,192.87 to the full payment of the $10,000 corporate note. $1037.13 was deposited into the corporation checking account and $270 was applied to the first and second payments on the new $11,500 note.

On June 8, 1972 plaintiffs executed a $5000 note to the Bank. $5000 was credited to the corporation's checking account at the request of plaintiffs.

As of June 22, 1973 the corporation also owed the Bank substantial acounts which indebtedness was secured by pledges of accounts receivable. On that date the Bank advised plaintiff that it had discovered that although the corporation had collected many of the pledged accounts the money had not been properly applied to the debt owing the Bank. The Bank believed that about $30,000 had been collected and not applied to the debt. Then on June 22, 1973 Mrs. Schultz alone gave a $30,000 note to the Bank.

To secure the $11,500 note both plaintiffs gave the Bank a mortgage on real estate owned by them. Then to secure the $5,000 note plaintiffs transferred the same real estate to the Bank as trustee. A junior trust deed from the Bank as trustee to the Bank as creditor was executed. To secure the $30,000 note plaintiffs assigned their beneficial interest in the trust to the Bank.

All of the notes are in default and are still being held by the Bank.

I

UCC Sec. 3--408 (Ill.Rev.Stat. chap. 26, § 3--408) states:

'Want or failure of consideration is a defense as against any person not having the right of a holder in due course, except that no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind * * *.'

Plaintiffs contend that because the Bank did not affirmatively plead the 'except' clause in its answer it cannot rely on that clause in its motion for summary judgment.

Unless contained in the enacting clause if the exception appears in a subsequent clause of a statute the party who wishes to rely on it has the burden of pleading it in order to avoid the operation of the statute. People ex rel. Illinois Armory Board v. Kelly, 369 Ill. 280, 283--284, 16 N.E.2d 693; Edwards v. Willcutts, 20 Ill.App.3d 699, 701, 313 N.E.2d 529.

The fact that the except clause states that 'no consideration is necessary' does not mean that consideration was not in fact present. New money was given by the Bank for the $5,000 note (Commercial State Bank of Forreston v. Folkerts, 200 Ill.App. 385); there was a discharge of the $10,000 note plus new money given for the $11,500 note (Farmers National Bank of Princeton v. Rosenkrans, 240 Ill.App. 230); and forbearance was consideration for the $30,000 note (Weiland v. Weiland, 297 Ill.App. 239, 245, 17 N.E.2d 625). Further it was not necessary here for the bank to affirmatively plead the except clause in order to rely on it. A court may consider affirmative defenses raised in a motion for summary judgment even if those matters were not raised in an answer or by motion. Houser v. Michener, 20 Ill.App.3d 391, 395, 313 N.E.2d 651; Metropolitan Sanitary District v. Anthony Pontarelli & Sons, Inc., 7 Ill.App.3d 829, 839, 288 N.E.2d 905; Slone v. Morton, 39 Ill.App.2d 495, 497, 188 N.E.2d 493.

II

The $30,000 note was signed by Mrs. Schultz as security for an antecedent debt then due from the corporation. Plaintiffs argue that since the bank had constructive knoweldge that the pledged receivables had been collected and misapplied that it was somehow estopped to request additional security to replace the money diverted. They cite only two cases, United States Cold Storage Co. v. Central Mfg. Dist. Bank, 343 Ill. 503, 175 N.E. 825 and National Bank of Detroit v. Sachs, 314 Ill.App. 570, 41 N.E.2d 998, arguing that when a pledged asset was collected by the corporation and deposited to its account the checks became the 'property of the bank.' This is no more than a statement of a general rule (5 I.L.P., Banks, § 189) which has no application to the facts of this case.

The exercise by a bank of its right to apply a deposit made with it to the payment of an indebtedness due it from the depositor is optional with the bank. Anderson v. Keystone Supply Co., 293 Ill. 468, 474, 127 N.E. 668. There is no merit to this argument of plaintiffs.

III(a)

Plaintiffs argue that the Bank has not responded to affidavits of Mrs. Schultz and her counsel Julius Abler stating:

The Bank required that its accountants audit the books of the corporation and they did.

The Bank argues that it was true but also immaterial. We agree. (b)

In the affidavit filed in support of the Bank's motion for summary judgment, the affiant Frank C. Potter, the Bank's board chairman alleged that certain conversations took place at a meeting with Mrs. Schultz and that one of the persons present was Jack Frey (Bank's then president).

Plaintiff's attorney Julius Abler filed a counteraffidavit saying he telephoned to Jack Frey, now residing in Arizona and that Frey told him he did not remember the meeting.

A hearsay statement to the effect that another person doesn't remember something does not meet the requirements of Supreme Court Rule 191(a). A counteraffidavit must recite material facts to which affiant could testify if called at trial. Windlow v. Wagner, 29 Ill.App.3d 172, 178, 239 N.E.2d 911.

(c)

Potter's affidavit states that the bulk of the proceeds of the $11,500 note was to pay the $10,000 prior loan to the corporation and the balance could be Used as plaintiffs desired. That in fact the $11,500 was disbursed as follows:

$10,000 to pay the principal of the $10,000 corporation note

$192.87 to pay the interest due on the $10,000 note.

$1037.13 by a check which plaintiffs, two weeks thereafter voluntarily deposited to the checking account of the corporation $270.00 to the first and second payment due on the note for May 1 and June 1, 1972 (though note was dated Apr. 3, 1972, disbursement was not made until June).

The counteraffidavit of Mrs. Schultz on this point does not deny any fact except that the $1037.13 was given to her by a check, but does admit that $1037.13 was deposited to the corporation's account on June 23, 1972.

The total extent of the denial here is that the bank and not the plaintiffs deposited the money to the corporation account.

We fail to see how this quibble is material. The undenied, undisputed fact is that all of the $11,500 was loaned to plaintiffs by the Bank.

(d)

The Potter affidavit also stated that plaintiffs' $30,000 note was 'additional and substituted security' for the corporation indebtedness.

Plaintiffs argue that if the security was 'additional' then the obligation of the corporation would continue; if 'substituted' the obligation of the corporation would terminate and that it cannot be both ways.

This play on words confuses 'indebtedness' with 'security'. To argue that one can not substitute security and give additional security for the same underlying debt is nonsense.

(e)

Finally, on this part of their argument the plaintiffs point to a letter written by Potter on Aug. 8, 1973 to imply that the Bank is taking an inconsistent position and thereby creating an issue of fact.

The full text of the letter, which was addressed to Mrs. Schultz more than a year before any litigation is as follows:

'You have asked for information concerning your indebtedness to this bank in connection with the loans of Merchant Moving & Storage Inc.

It is our understanding that moneys advanced to you secured by real estate mortgages and an Assignment of Beneficial Interest in Trust Number 339 at this bank, have been utilized by you in making advances to the company.

The present status of your personal debt to this bank is as follows:

Real estate mortgage dated April 3, 1972 has a present balance of $10,555.95 plus interest accured to current date of $230.64 making a total of $10,786.59. Real estate mortgage dated ...