Vigus v. O'bannon
| Decision Date | 06 October 1886 |
| Citation | 118 Ill. 334,8 N.E. 778 |
| Parties | VIGUSv.O'BANNON, Ex'r. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellant court, Third district.
Claim against the estate of a decedent, disallowed in the circuit and appellate courts. Claimant appeals.
To take a case out of the statute of limitations, concealment by an agent requires some plan, trick, or system of artifice, intended to mislead the plaintiff, and the bar even then is not removed if ordinary diligence could have discovered the fact. Cole v. McGlathry, 9 Me. 131; McKown v. Whitmore, 31 Me. 448; Penobscot v. Mayo, 65 Me. 561; Buckner v. Calcote, 28 Miss. 592; Kuhlman v. Baker, 50 Tex. 630; Bremond v. McLean, 45 Tex. 18; Sweet v. Hentig, 24 Kan. 497; Munson v. Hallowell, 26 Tex. 475; Boyd v. Boyd, 27 Ind. 429; Robinson v. State, 57 Ind. 113; Sutton v. Dye, 60 Ga. 449; Freeman v. Craver, 56 Ga. 161; District, etc., v. French, 40 Iowa, 601; Foster v. Rison, 17 Grat. 322; Findley v. Stewart, 46 Iowa, 655; Jones v. State, 14 Ind. 120; Blenthen v. Lovering, 58 Me. 438; Hayward v. Gunn, 82 Ill. 389; Campbell v. Vining, 23 Ill. 530; Beatty v. Nickerson, 73 Ill. 605; Cagwin v. Ball, 2 Brad. 72; Nudd v. Hamblin, 8 Allen, 130; Farnam v. Brooks, 9 Pick. 244; Wood v. Carpenter, 101 U. S. 135. Agency will not create such a trust as will suspend the statute. George L. Zink and James M. Truitt, for appellant.
R. McWilliams, L. Allen, and Lane & Cooper, for appellee.
Richard W. O'Bannon died November 15, 1883. On June 30, 1884, a claim for $3,000, and interest thereon from March 4, 1875, amounting to $4,670, was filed against his estate in the county court of Montgomery county, by Darius L. Vigus, the appellant in this cause. The claim was disallowed by the county court, and taken by appeal to the circuit court of that county, where the case was tried by agreement, before the circuit judge without a jury, and judgment rendered in favor of the estate, disallowing the claim. Such judgment of the circuit court has been affirmed by the appellate court of the third district, and appellant prosecutes his further appeal to this court.
On May 22, 1872, the Protection Life Insurance Company, of Chicago, issued a policy of insurance on the life of appellant's mother, Eliza Vigus, for the sum of $5,000, payable to appellant. Eliza Vigus died on October 12, 1874, at Raymond, in Montgomery county, and the disease of which she died, according to the statements in the proofs of death furnished to the company, was paralysis. In January, 1875, Richard W. O'Bannon went from Raymond to Chicago, to collect the insurance money for appellant, at the request of the latter, and as his agent, taking the policy with him. Upon his return in the same month he paid to appellant $2,000, stating that the company refused to pay any more, and that he had compromised the claim for that amount. It is charged by appellant that O'Bannon collected the full sum of $5,000 named in the policy, and failed to pay over $3,000. To recover said sum of $3,000 is the object of this proceeding. The claim of appellant, as sworn to and filed in the county court, alleges that the collection of the $3,000 ‘was by the said O'Bannon fraudulently concealed from the calimant during the lifetime of the said O'Bannon.’
Three questions of fact were presented for the determination of the trial court: (1) Did R. W. O.'Bannon collect the $3,000 in question from the insurance company? (2) Did he fraudulently conceal the fact of such collection from the appellant? (3) Did appellant file his claim in the county court within five years after he discovered that the company had paid the $3,000?
As bearing upon these questions of fact, certain propositions of law were submitted to the circit court upon the trial of the cause, and the action of that court in reference to those propositions is the only feature of the case which it is proper for us to consider. Hobbs v. Ferguson's Estate, 100 Ill. 232; Tibballs v. Libby, 97 Ill. 557.
The circuit court refused to hold as law, appellant's sixth proposition, which is as follows: ‘(6) The court holds that the receipt, indorsed on the back of the policy of insurance in evidence in this case,-the signature to the same being admitted to be in the handwriting of the said O'Bannon,-is evidence of a satisfactory character that the said O'Bannon received the amount of money in said receipt specified; and that, to do away with its force, the testimony should be convincing, and the burden of proof of explain or contradict said receipt rests on the defendant.’
The receipt here referred to bears no date, and is as follows; ‘Received of the Protection Life Insurance Company five thousand dollars, being the amount in full of the within policy.
D. VIGUS,
‘By R. W. O'BANNON.’
It was indorsed on the back of the policy, and was found among the records and files of the insurance company, about November 20, 1883. The signature, ‘D. VIGUS, by R. W. O'BANNON,’ is admitted to be in the handwriting of R. W. O'Bannon. The language of the sixth proposition is almost identical with the language used by us in Winchester v. Grosvenor, 44 Ill. 425, and subsequently approved of in Rosenmueller v. Lampe, 89 Ill. 212.
There are circumstances developed by the testimony which tend to substantiate the recital contained in the receipt. W. J. Terpenny, the head book-keeper of the insurance company, swears that there was collected of the policy holders, by assessment, the sum of $5,000 to pay the Vigus loss. It is also proven, and is not disputed, that on March 4, 1875, the insurance company issued a check of that date for $3,000, on account of the Vigus claim, payable to appellant, and drawn on the Fidelity Savings Bank & Safe Depository of Chicago, and that this check for $3,000 was paid by that bank some time in June, 1875. It is not claimed or contended by anybody that appellant ever received the $3,000 so paid on the last-named check.
O'Bannon's business with the company in Chicago was transacted mainly with one A. W. Edwards, the secretary of the company, who was O'Bannon's friend. The evidence tends to show that O'Bannon made a second visit to Chicago late in May, or early in June. It is undisputed that he removed, in the latter part of May or early in June, 1875, from Raymond, where he had been living, to Litchfield, distant about 16 miles, where he built himself a house, costing some $4,000 or $5,000. There are also circumstances which tend to contradict the recital contained in the receipt. It is not shown by any positive testimony, except the language of the receipt, that the check for $3,000 was delivered to O'Bannon, or that he received the money on it. The check itself cannot be found among the records of the company. Edwards, the secretary, whose deposition was taken by appellee, and is a part of the record, can remember nothing about the payment or settlement of this particular claim. The body of the receipt indorsed on the policy, with the exception of the amount, was written by Turpenny, who left a blank space for the amount to be inserted. The amount so inserted, to-wit, the words ‘five thousand dollars,’ are in the hand writing of Edwards. The proof tends to show that these words written by Edwards, and the signature written by O'Bannon, were written with the same ink, and at the same time, but whether in January or March or June, 1875, does not appear. The person who drew the money from the bank on the check for $3,000 must have indorsed the name of appellant, who was the payee therein, upon the back of the check. If the indorsement was so made by Edwards, it was a forgery. If it was made by O'Bannon, he may have signed appellant's name, by himself as agent, upon the back of the check, in the same way, and under the same supposed authority, as he signed such name to the receipt. Appellee introduced certain expert testimony to show that the word ‘five’ in the receipt had the appearance of being changed from the word ‘two,’ while appellant introduced an exactly equal amount of expert testimony to show that the word ‘five’ was so written in the first place, and had never been changed from the word ‘two.’
We have thus alluded to some of the circumstances which tend to sustain, and some which tend to contradict, the receipt. It was, to be sure, the province of the trial court to decide upon the value of these circumstances as evidence, and also to pass upon all the other facts in the case. But it was at the same time the duty of that court to apply proper rules of law in determining what weight should be given to the receipt introduced, and what kind of proof should be required to overcome it, and what party should assume the burden of explaining or contradicting it. We are therefore of the opinion that the circuit court erred in refusing to hold as law appellant's sixth proposition.
The circuit court also refused to hold as law the following propositions, numbered 10 and 12, which were submitted to it by appellant on the trial:
‘(10) The court holds that if the evidence shows that a relation of trust and confidence existed between the claimant and the said O'Bannon, and that O'Bannon, as claimant's agent, collected from the Protection Life Insurance Company the full amount of a policy in said company for $5,000, held by claimant; that when the said O'Bannon accounted with claimant for the amount collected he concealed from the knowledge of the claimant that he had collected said sum of $5,000, but, on the contrary, stated to claimant that said company disputed the justness of his claim, and refused to pay the same in full, and that he, the said O'Bannon, had not and could not collect from said company the full amount of said policy, and could only collect, and had only collected, in a compromise with said company, the sum of $2,000, and then and there advised the claimant to ratify and approve said compromise, and accept said sum of $2,000 in full of claimant's said claim for...
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