Thomas v. First Nat. Bank of Belleville

• Decision Date: 22 December 1904
• Citation: 72 N.E. 801,213 Ill. 261
• Parties: THOMAS v. FIRST NAT. BANK OF BELLEVILLE.
• Court: Illinois Supreme Court

213 Ill. 261

72 N.E. 801

THOMAS

v.FIRST NAT. BANK OF BELLEVILLE.

Supreme Court of Illinois.

Dec. 22, 1904.

Appeal from Appellate Court, Fourth District.

Action by J. Edward Thomas against the First National Bank of Belleville, Ill. From a judgment of the Appellate Court affirming a judgment for defendant, plaintiff appeals. Affirmed.L. D. Turner (Dill & Wilderman, of counsel), for appellant.

Winkelmann & Baer and R. W. Ropiequet, for appellee.

This is an appeal from the Appellate Court for the Fourth District to reverse a judgment in that court in favor of appellee, against appellant, in an action of assumpsit upon a certificate of deposit issued by the defendant to one J. F. Wassell and indorsed by him to plaintiff.

The evidence shows that the firm of E. J. Arnold & Co. had their principal office in St. Louis, Mo., where, from September, 1902, until February, 1903, they were engaged in the business of bookmaking, pool selling, and betting on horse races. They had branches of their business in Chicago, Harlem, Hawthorn, Washington, D. C., and other places, and sold pools on various race tracks throughout the country. They also had a breeding farm in Illinois, upon which they claimed to raise horses. They sought customers throughout the country, but the customers did not do individual betting or buying pools, but were called ‘depositors.’ They placed certain amounts of money in the hands of Arnold & Co., and were by them guarantied the right to share in the profits of the business to the extent of 2 per cent. per week on all sums deposited, and to withdraw the original deposit at any time. The appellant, with full knowledge of the character of the business carried on by Arnold & Co., in September, 1902, engaged with them to open a branch office in Washington, D. C., and there solicit deposits from persons willing to invest in the business. He was to remit the deposits to Arnold & Co., and receive 10 per cent. of all money thus secured as his share or compensation. He operated that branch office during the existence of the firm of Arnold & Co., advertised himself as manager, distributed literature of the firm, and orally and by letter solicited investments, and advocated and advanced the business generally. When he secured a customer, it was his custom to deposit the money received in bank, and send his individual check to the firm at their principal office in St. Louis, from which was issued a certificate directly to the customer. J. F. Wassell, a printer by trade, engaged in the government printing office in Washington, his home being in Belleville, this state, had his attention called to the flattering reports of the financial success of Arnold & Co., and on January 23, 1903, went to the office of appellant in Washington, D. C., for the purpose of investing a certificate of deposit issued by the appellee bank, payable to him, amounting to $1,335. He was informed by appellant that Arnold & Co. would accept nothing but cash, and it was therefore agreed that appellant should take the certificate himself, and issue his check directly to Arnold & Co. Appellant was also to advance $15 in addition to the $1,335 due on the certificate, and send the same to Arnold & Co., provided Wassell should indorse and deliver to him the certificate of deposit and pay the $15 advanced in cash on the following Monday. The agreement was carried out according to these terms, and the certificate indorsed to appellant. On the morning of February 8, 1903, the home office of Arnold & Co. at St. Louis failed to open, and the partners absconded. Thereupon Wassell informed the bank of the indorsement and delivery of said certificate of deposit, and notified it not to pay the same. The certificate matured the following March, and at the April term of the circuit court of St. Clair county this suit was commenced. A jury was waived, and the case tried by the court. On the trial appellant submitted four propositions of law to the court, all of which were marked ‘Refused,’ and judgment rendered against the plaintiff for costs of suit. An appeal was prosecuted to the Appellate Court for the Fourth District, where the judgment of the circuit court was affirmed.

WILKIN, J. (after stating the facts).

It is contended by counsel on behalf of appellant that the certificate of deposit sued on, when indorsed by the original payee, became, in effect, a promissory note, and upon being presented to the bank for payment by the holder, properly indorsed, it was the duty of the bank to immediately pay the same. This, it is said, is so because the title to the certificate was absolutely vested in and became the property of the assignee at the time of its indorsement, and that the only defense which the bank could make to this suit was such as would go to the ownership of the instrument, affecting the title thereto, such as forgery. Conceding the law to be as slaimed in all legitimate transactions, it has no proper application to the facts in this case. The defense does question the title of the plaintiff to the certificate of deposit sued on. Section 131 of chapter 38 of our statute (Hurd's Rev. St. 1903) provides: ‘All promises, notes, bills, bonds, covenants, contracts, agreements, judgments, mortgages, or other securities or conveyances made, * * * where the whole or any part of the consideration thereof shall be for any money, property, or other valuable thing won by any gaming, or playing at cards, dice, or any other game or games, or by betting on the side or hands of any person gaming, or by wager or bet upon any race, * * * shall be void and of no effect.’ Section 136 of the same chapter provides: ‘No assignment of any bill, note,...