{ "id": 3339142, "name": "Phillipina Simpson, Appellee, v. Augusta Heberlein, Appellant", "name_abbreviation": "Simpson v. Heberlein", "decision_date": "1931-01-27", "docket_number": "Gen. No. 33,751", "first_page": "579", "last_page": "589", "citations": [ { "type": "official", "cite": "259 Ill. App. 579" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "18 Ill. App. 167", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 865014 ], "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/ill-app/18/0167-01" ] }, { "cite": "144 Ill. 611", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3080604 ], "pin_cites": [ { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/ill/144/0611-01" ] }, { "cite": "144 U. S. 434", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3561143 ], "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/us/144/0434-01" ] }, { "cite": "251 Ill. App. 374", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5587083 ], "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill-app/251/0374-01" ] }, { "cite": "323 Ill. 594", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5175170 ], "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/ill/323/0594-01" ] }, { "cite": "306 Ill. 473", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5780643 ], "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/ill/306/0473-01" ] }, { "cite": "303 Ill. 226", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5003933 ], "weight": 2, "pin_cites": [ { "page": "229, 230" }, { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/ill/303/0226-01" ] }, { "cite": "247 Ill. App. 358", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3302895 ], "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ill-app/247/0358-01" ] }, { "cite": "125 N. Y. 572", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1895954 ], "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/ny/125/0572-01" ] }, { "cite": "197 Ill. App. 326", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5374023 ], "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/ill-app/197/0326-01" ] }, { "cite": "177 Ill. App. 473", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2812861 ], "weight": 2, "pin_cites": [ { "page": "477" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-app/177/0473-01" ] } ], "analysis": { "cardinality": 704, "char_count": 15342, "ocr_confidence": 0.499, "pagerank": { "raw": 6.209811994104169e-08, "percentile": 0.3844453865843144 }, "sha256": "a59570dd4a2d87d22c289faaa6dedb9c289efcf1dde0c6085d38480c6ef7d1a0", "simhash": "1:ab5e6a6f483882e0", "word_count": 2773 }, "last_updated": "2023-07-14T14:37:37.096016+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Phillipina Simpson, Appellee, v. Augusta Heberlein, Appellant." ], "opinions": [ { "text": "Mr. Justice Gridley\ndelivered the opinion of the court.\nIn a first class action in contract, commenced in the municipal court on November 7,1928, there was a trial without a jury in March, 1929, resulting in a finding and judgment against defendant in the sum of $3,129.40, and this appeal followed.\nIn plaintiff\u2019s statement of claim she alleged in substance that in December, 1916, one George B. Klor loaned to defendant the sum of $1,800, for which defendant executed and delivered to him her promissory note for $1,800, dated Chicago, December 4,1916, payable to his order on or before two years after date, with 6 per cent interest per annum from date (copy of note set out in full in the statement); that subsequently said Klor, believing himself to be, and being, \u201cin prospect and peril of death from a sickness and disease,\u201d assigned and delivered the note unindorsed to plaintiff \u201cfor her own use,\u201d with the understanding, however,'that should he recover from said sickness and disease the note should be his property; that thereafter on May 4, 1918, Klor died from said sickness and disease; that plaintiff, ever since she received the note from him has had it in her possession ; that no part of the money due thereon has ever been paid; and that although plaintiff has often requested payment of defendant she has refused to pay the note or any part thereof, to plaintiff\u2019s damage in the sum of $5,000.\nIn the affidavit of claim, accompanying said statement it is stated that there is now due (November 7, 1928) to plaintiff on the note the total sum of $3,087, after allowing to defendant all just credits, etc.\nIn defendant\u2019s affidavit o'f merits, filed November 27, 1928, she alleged in substance that plaintiff does not allege that Klor ever indorsed the note; that plaintiff is not the legal owner; that she did not pay any consideration for the note; that it never was assigned and delivered by Klor in his lifetime to plaintiff \u201cfor her own use,\u201d as alleged; that there is a signature \u201cGeorge B. Klor\u201d on the back of the note but the same is not his genuine signature; that the note was in plaintiff\u2019s possession for a considerable time after Klor\u2019s death and during that time it did not bear said signature or name on its back; that \u201cthe indebtedness evidenced by the note was by mutual consent and agreement with the payee, Klor, now deceased, canceled and extinguished\u201d; and that defendant is not indebted, to plaintiff on the note in any sum.\nOn the trial defendant was called and examined under section 33 of the Municipal Court Act, Cahill\u2019s St. ch. 37, Tf 421, and plaintiff testified in her own behalf and was cross-examined at great length. Defendant introduced a certified copy of Klor\u2019s last will, admitted to probate in the probate court of Cook county on June 13,1918, and called as her witness John Leo Fay, an attorney-at-law and the executor of said will. Defendant also testified in her own behalf.\nWhen defendant was on the stand under section 33 the original note was shown her and she stated that she signed it as maker and delivered it to Klor in his lifetime, and that she had never paid anything on the note to him or anyone. Plaintiff then' offered the note in evidence, and upon objection by defendant\u2019s attorney the court said \u201cI will withhold passing on the note for the present.\u201d Thereupon a copy of the note was produced and it was stipulated by the parties that the same is a true and perfect copy of the original, and that said copy \u201cmay be inserted in the bill of exceptions in lieu of the original.\u201d It is contained in the present transcript, and is substantially as set out in plaintiff\u2019s statement of claim, as above stated, except that on its back is the name \u201cGeorge B. Klor,\u201d written in ink in block letters.\nOn direct examination plaintiff testified in subr stance that Klor, during his lifetime and for about 18 years, owned and conducted a delicatessen store on Kinzie Street, Chicago; that she during most of the period conducted a rooming house nearby, was a frequent customer at Klor\u2019s store and became well acquainted with him; that early in January, 1918, he informed her that he was seriously ill and had to go to a hospital and requested her to manage his store and business until he returned; that she did so until several months after his death at the hospital on May 4, 1918; that one Henry Heberlein also worked at the store as Klor\u2019s employee, \u2014 she waiting on customers and Heberlein \u201ctaking out the orders\u201d; that she did not receive any compensation for her services although when she was employed Klor stated that he would pay her therefor; that he was suffering from cancer and plaintiff frequently visited him at the hospital in the evenings and on Sunday afternoons and there talked with him regarding business at the store and other matters; that during her visits there in the latter part of January he several times told her that he had a note (the one sued upon) and some other papers which he desired to give to her and urged her to procure a \u201cvault\u201d or safety box in her name and put them in it; that she finally \u201crented a vault\u201d and so informed Klor; that early in February, on a Sunday afternoon, he gave her a package of papers in which was the note and other papers and told her to put them in her vault; that \u201che, told me to keep them, and if he came out he wanted them back, and if he did not come out he wanted me to keep them\u201d; that she put the papers in her vault, where they remained until after his death; that for a time she \u201cdid not do anything in reference to the note, because it was not due\u201d; that after it became due she presented it to defendant and requested payment, but defendant refused to pay anything; that after Klor\u2019s will had been probated and while his estate was being administered, she stated to Andrew J. Klor, brother of the deceased and chief beneficiary under the will, that she had a note signed by defendant, and that the deceased in his lifetime had made a gift of it to her.\nOn cross-examination plaintiff testified in substance that she was not related to Klor; that when he gave her the package of papers no one else was present; that there were three safes in Klor\u2019s store which she never opened; that the note is now in the same condition as when she first saw it, except a stamp on its face and the name \u201cGeorge B. Klor\u201d on the back; that when she first saw it after opening the package containing the note \u201cthere was nothing written on the back of the note\u201d; that it has been in her possession ever since, except when she turned it over to a \u201c collector,\u201d who returned it, and when she turned it over to her attorney when the present action was brought; that the name \u201cGeorge B. Klor\u201d now on the back is not his signature and \u201cis a fake\u201d; that her first conversation with Andrew J. Klor regarding the note was had about seven or eight months after the deceased\u2019s death; that she then told him \u201cabout getting the note,\u201d and he \u201cdid not say anything,\u201d except that he would see his attorney, Fay; that she first became acquainted with Fay after Klor\u2019s death, and in April, 1928, spoke to him about the note; that Fay caused the safes in the store to be broken open, in which there were found large sums of money and other assets; that she continued to manage the store until about September, 1918; that she used the proceeds of the sales to pay bills \u201cas I was told to do by Mr. Fay and Mr. Andrew , Klor\u201d; that she never made or filed any claim against Klor\u2019s estate for her services; that when Klor in the hospital delivered to her the package of papers, after having spoken about the note, \u201che told me if he died he wanted me to keep it and if he did not die, if he got over that, he would want it back\u201d; that on several occasions at the hospital, before Klor\u2019s death, both plaintiff and defendant and Klor visited together, but nothing was said about any note; and that at the time that Klor gave her the package of papers in the hospital she did not then examine the contents of the package and did not then know what was in it.\nIn Klor\u2019s last will, executed by him four days before his death and introduced in evidence by defendant, he bequeathed to his brother, Andrew J. Klor, \u201call uninvested cash belonging to me\u201d and bequeathed certain legacies to various named persons, including defendant, to whom he bequeathed \u201ca legacy sufficient to pay the $5,000 mortgage from her and held by me and my said brother.\u201d All the remainder of his estate he devised and bequeathed to his said brother, his heirs and assigns forever, and he appointed his friend, John Leo Fay, as executor of the will and to act without bond. No mention is made in the will of the said note signed by defendant.\nFay, called as defendant\u2019s witness, testified in substance that he acted as executor of Klor\u2019s will, and with the help of his assistant, Fogel, finally settled Klor\u2019s estate and he was discharged as executor; that he has \u201cno recollection\u201d of having had any conversation with plaintiff about the note, while the estate was in process of settlement, although he several times saw her in his office; that the note \u201cwas not included in the inventory of the estate\u201d; that at the time of Klor\u2019s death the mortgages mentioned in the will were in his (Fay\u2019s) possession; that he has since learned that the note was drafted in his office and by Mr. Fogel; that he was present when the safes in Klor\u2019s store were broken into; that they contained much cash and many checksthat the contents were removed to his office; that Klor\u2019s estate was settled and his final report as executor filed \u201cnine or ten years ago\u201d; that he first learned of the existence of the note sued upon in the present action \u201ctwo or three years ago\u201d; that he \u201cdid nothing \u201d regarding it and made no effort to have it put in the possession of the estate or have it administered upon; that Andrew J. Klor never asked him (Fay) to make any effort to have the note put into the possession of the estate; and that when final distribution of the contents of Klor\u2019s store was made \u201cthe merchandise was turned over to Mrs. Simpson\u201d (plaintiff).\nDefendant,, called as a witness in her own behalf, testified in substance that, in March, 1918, shortly before Klor died, she had a conversation with him at the hospital; that no one else was present; that she asked him if he wanted her \u201cto bring- the interest due on the note to him\u201d;'that he said \u201cno\u201d; that he stated he had plenty of money with him for his needs, that if he wanted any interest he would ask her for it, and that she should \u201cwait until he came to her house to get it\u201d; and that that was \u201call he said.\u201d This was the only testimony offered by defendant, in any way bearing upon her defense, as stated in her affidavit of merits, that her indebtedness to him, as evidenced by