{ "id": 2644376, "name": "George S. MacKenzie, Appellee, v. Fred T. Barrett, Administrator, Appellant", "name_abbreviation": "MacKenzie v. Barrett", "decision_date": "1909-05-20", "docket_number": "Gen. No. 14,485", "first_page": "414", "last_page": "420", "citations": [ { "type": "official", "cite": "148 Ill. App. 414" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "131 N. Y. 169", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2247441 ], "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ny/131/0169-01" ] }, { "cite": "40 Ill. App. 475", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 }, { "cite": "50 Ill. 412", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2605929 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/50/0412-01" ] }, { "cite": "3 Scam. 119", "category": "reporters:state", "reporter": "Scam.", "opinion_index": 0 }, { "cite": "15 Ill. App. 390", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 6045539 ], "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-app/15/0390-01" ] } ], "analysis": { "cardinality": 613, "char_count": 12470, "ocr_confidence": 0.507, "pagerank": { "raw": 1.3764726080248455e-07, "percentile": 0.639601382165524 }, "sha256": "5ba47a2257da270a991991d55ad6792cc0507b5464401c5db549fd2c5e6fc210", "simhash": "1:b7c679a0982bb100", "word_count": 2207 }, "last_updated": "2023-07-14T18:19:20.179595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George S. MacKenzie, Appellee, v. Fred T. Barrett, Administrator, Appellant." ], "opinions": [ { "text": "Mr. Presiding Justice Adams\ndelivered the opinion of the court.\nCounsel for appellant contend that there was no competent evidence in support of appellee\u2019s claim, objecting specifically to the checks and stubs as evidence of loans by the appellee to Miss Barrett, the appellant\u2019s intestate.\nA check on a bank is not evidence of indebtedness of the payee to the drawer of the check. On the contrary, it is evidence of the indebtedness of the drawer to the payee. Chestnut v. Chestnut, 15 Ill. App. 390, 392. If such a check is not paid when presented for payment, for want of funds of the drawer, and if the payee, in a suit by him against the drawer, proves these facts, a prima facie case is made for a recovery. The checks, therefore, standing alone, are no evidence of loans by appellee to the deceased. Are the notations on the stubs of the checks, assuming them to have been made at the same times as the checks, and taking them in connection with the checks, evidence of loans by appellee to the deceased? It would seem that the stubs are no stronger evidence than entries in appellee\u2019s books of loans to the deceased of the several sums for which the checks were given, made at the same times at which the checks were given. Such entries of charges for money loaned would not be evidence. Boyer v. Sweet, 3 Scam. 119; Ruggles v Gatton, 50 Ill. 412; Schwarze v. Roessler, 40 Ill. App. 475; Smith v. Rentz, 131 N. Y. 169, 176.\nIn Boyer v. Sweet the court, after stating the rule as to the admission of books of account as evidence, say: \u201cThis rule would not apply to an account for money lent, as that is not usually the subject matter of an account, notes being generally taken, nor to an account certain\u2014a single charge only, as that would show no re\u00bf\u2019 :ar dealings between the parties.\u201d\nIn Ruggles v. Gatton, supra, the court, p. 416, refer to the above quoted language approvingly.\nIn Smith v. Rentz, 131 N. Y. p. 176, the court say: \u201cMoreover, entries of cash transactions may be fabricated with much greater safety and with less chance of the fraud being discovered than entries of goods sold or delivered, or of services rendered. It would be unwise to extend the operation of the rule admitting a party\u2019s books in evidence, beyond its present limits, as would be the case, we think, if books containing cash dealings were held to be competent.\u201d\nThe words on the stubs of the checks for $300 and $100 are ambiguous. They are, \u201cOrder of A. A. Barrett for loan.\u201d These words may import a loan from Miss Barrett to the appellee as well as a loan from him to her.\nIn the present case a book of appellee\u2019s which Miss Brennan testified contained the entries of cash payments made in the regular course of business, was put in evidence. For what purpose it was admitted, we do not know, as it was stipulated in open court, on the trial, that it contained no entries of any sums evidenced by the checks. As appellant defended as administrator, appellee was excluded from testifying by section 2 of the statute in respect to evidence; but if, as he claims, the checks were for loans to the deceased, he had ample time in which to secure acknowledgment of this from the deceased, as by notes, or other written evidence, Miss Barrett left his employ in the latter part of January, 1906, from sickness, as we infer from the evidence, and went to a hospital, and did not die till July 13, 1906, and the checks are dated, respectively, September 4, 1905, November 4, 1905, and February 21, 1906. The appellee\u2019s counsel contend that the stubs are admissible as res gestae. They are no more res gestae than would be entries in appellee\u2019s books made at the very time the checks were written. But, in view of the law in respect to books of account as evidence, such entries would be inadmissible. It is desirable that the law shall be consistent.\nThe evidence is, we think, sufficient to prove that check No. 1707 to the order of the Aetna Life Insuranee Company, was received by that company in payment of the premium on a policy on the life of Miss A. A. Barrett. The policy was not produced, nor is there any evidence of its contents or for whose benefit it was, or by whom it was held. There is no evidence of any request of the deceased to appellee to pay the premium, or of any obligation resting on him to pay it. It was, so far as appears from the evidence, a voluntary payment by appellee. We do not understand that one can make another his debtor without the latter\u2019s request or consent. If it be said that the payment was for Miss Barrett\u2019s benefit, the answer is that this is not shown by the evidence.\nIt was objected to the receipt as evidence, that there was no evidence that Miss Barrett had authorized appellee to make the payment. Appellee relies on the testimony of Miss Brennan, that the deceased said to her that appellee had been exceedingly kind to her, that he had not only paid her salary constantly, but had advanced her considerable in addition to it. Neither time nor circumstance nor amount was stated. The statement may have been strictly true, and yet have had no reference to any item of the claim in question.\nThe appellee has assigned, as cross-error, the ruling of the court against the admission in evidence of the following letter offered in evidence by appellee:\n\u201cSouth Haven, Michigan, August 7.\nDear Mr. Mackenzie : You must think I have deserted you, but I have been over here answering all the letters to Anna\u2019s friends, as it is a nice, quiet place. I am coming home tomorrow, as I go into the hospital in about a week.\nOur lawyer won\u2019t allow me to settle any of Anna\u2019s accounts except those that have been made since her death, such as the undertaker and so forth. He says the court has to know about them or I may get into trouble. I wish we could settle it all now, as it is a shame to keep you waiting for your money. There are other bills coming that I can not settle, such as Marshall Field\u2019s, and also a dressmaker\u2019s bill that she refused to pay.\nI am going into the hospital in a short time, but I will drop in and see you as soon as I return.\nHoping you are well and happy, I am,\nTour sincere friend,'\nFred T. Barrett.\u201d\nThe letter was written subsequently to the appointment of appellant as administrator and prior to the filing of appellee\u2019s claim against the estate. It is urged that the letter is an admission by the appellant, as administrator, and is competent evidence, and cases in other jurisdictions are cited to the effect that the admissions of administrators, in their respective capacity, are admissible in suits against them. The letter was written prior to the filing of appellee\u2019s claim and does not indicate that appellant knew just what the claim was, but only that appellee claimed that the estate owed him something, and there is a refusal to settle anything with appellee before the court\u2019s action in the premises.\nWe do not think the court erred in ruling against the admission of the letter in evidence. We are impressed with the view, that if all the facts could have been proven in regard to the items of the claim, which was perhaps impossible owing to the exclusion of appellant\u2019s testimony by the statute, the justice of the claim might have been shown. But we are limited to passing on the competency and sufficiency of the evidence in the record, and cannot escape the conclusion that the claim has not been proven, and that the court erred in its finding.\nThe judgment will be reversed and judgment will be entered here that appellee\u2019s claim be disallowed and dismissed.\nReversed, and judgment here.", "type": "majority", "author": "Mr. Presiding Justice Adams" } ], "attorneys": [ "Whitfield & Whitfield, for appellant.", "Willaed & Evans and Bex Mackenzie, for appellee." ], "corrections": "", "head_matter": "George S. MacKenzie, Appellee, v. Fred T. Barrett, Administrator, Appellant.\nGen. No. 14,485.\n1. Debtor and creditor\u2014effect of check as evidence of debt. A check on a bank is not evidence of the fact of indebtedness of the payee to the drawer of the check, but, on the contrary, it is evidence of the indebtedness of the drawer to the payee.\n2. Debtor and creditor\u2014what essential to establishment of relation. The relation of debtor and creditor cannot be established without the consent of the debtor.\n3. Evidence\u2014effect of entries upon stubs of check book. Held, in an action against the estate of a deceased party that entries contained upon stubs of a check book are not evidences of indebtedness.\n4. Evidence\u2014what not part of res gestae. Held, that entries contained upon the stubs of a check book were no part of the res gestae in an action against the estate of a party deceased to recover an alleged indebtedness claimed to have been shown by such entries.\n5. Evidence\u2014when admission by administrator incompetent. Held, that a letter urged as containing an admission by the administrator of an estate sought to be charged with a debt was not competent as evidence tending to show the existence of such debt.\nContested claim in court \u00f3f probate. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthild, Judge, presiding.\nHeard in this court at the March term, 1908.\nRehearing denied June 14, 1909.\nReversed and judgment here.\nOpinion filed May 20, 1909.\nStatement by the Court. The appellee filed a claim in the Probate Court of Cook county against the estate of Arma. A. Barrett, deceased, of which estate appellant is administrator. The Probate Court disallowed the claim and appellee appealed to the Circuit Court, where the cause was tried by the court, without a jury, with the result that the court found for appellee and rendered judgment on finding for the sum of $583.36. Appellee\u2019s claim, filed by him in the Probate Court, is for cash loaned September 4,1905, $300; cash loaned November 4,1905, $100; cash loaned February 21,1906, $183.36.\nThe appellant\u2019s intestate, Miss Anna A. Barrett, was in appellee\u2019s employ, and quit his employ in the latter part of January, 1906, on account of sickness, as we infer from the evidence. She died July 13, 1906. Appellee put in evidence, in support of his claim, the following documents:\n\u201cChicago, September 4, 1905.\nNo. 1603.\nThe Northern Trust Company, Southeast corner LaSalle & Adams street:\nPay to the order of A. A. Barrett $300.00.\nG-. S. McKenzie.\nPay First National Bank or order.\nAnna A. Barbett.\u201d\nEntry on stub of check: \u201cOrder of A. A. Barrett for loan $300.\u201d\n\u201cChicago, February 21, 1906.\nNo. 1707.\nNorthern Trust Company.\nPay to the order of Aetna Life Insurance Company $183.36, one hundred eighty-three 36/100 dollars.\nGr. S. Mackenzie.\nAetna Life Insurance Co. Pay to the order of 1st National Bank, Chicago.\nThomas R. Lynas, Mgr.\u201d\nStub of check: \u201cNo. 1707. February 21, 1906. To the order of Aetna Life for A. A. Barrett, $183.36.\u201d\n\u201cAetna Life Insurance Company.\nHabtfobd, Conn., February 20, 1906.\nThe receipt of the premium due on above date, under policy No. 283,383 on the life of Miss A. A. Barrett is hereby acknowledged. * * * Paid this 20th day of Feb\u2019y, 1906.\nThos. R. Lynas, Mgr.\nAgent at Chicago, Ill.\u201d\n\u201cNo. 1630. Chicago, Nov. 6, 190\u2014\nPay to the order of A. A. Barrett $100.00, one hundred 00/100.\nG-. S. Mackenzie.\nPay to the order of the First National Bank of Chicago. Anna A. Barrett.\u201d\nStamped: \u201cPaid through Chicago Clearing House November 6,1905.\u201d\nStub of check: \u201cNo. 1630. November 4, 190\u2014 to the order of A. A. Barrett for loan, $100.\u201d\nIt was proved, without objection, that next after 190\u2014 in the stub and check should be the figure 5.\nThe signatures to the checks and corresponding stubs were proved to be genuine, and the evidence for appellee, the claimant, tends to prove that his uniform custom was to write checks and notations on the stubs of the checks contemporaneously. There is no evidence to the contrary of this. Margaret E. Brennan testified that, during-the time of the transactions in question, she kept appellee\u2019s books, and produced a book in which were the entries of payments and expenses, and that there were no entries in the book of the sums of $300, $100 and $183.36 shown in the checks. The book was admitted in evidence over appellant\u2019s objection.\nMiss Brennan testified that she visited Miss Barrett in the hospital Easter Sunday, 1906, and in conversation with Miss Barrett, she, Miss Brennan, referred to the fact that Mr. Mackenzie had been exceedingly kind to her, and Miss Barrett said that he had been not only exceedingly kind, that he had paid her salary constantly, and had advanced her considerable in addition to it.\nNo evidence was offered by appellant.\nWhitfield & Whitfield, for appellant.\nWillaed & Evans and Bex Mackenzie, for appellee." }, "file_name": "0414-01", "first_page_order": 430, "last_page_order": 436 }