{ "id": 5151976, "name": "Stella Sturges Cook and George D. Cook v. Don A. Moulton, Trustee, and The Globe National Bank of Chicago", "name_abbreviation": "Cook v. Moulton", "decision_date": "1895-07-05", "docket_number": "", "first_page": "428", "last_page": "432", "citations": [ { "type": "official", "cite": "59 Ill. App. 428" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "40 Ill. 99", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 426039 ], "opinion_index": 0, "case_paths": [ "/ill/40/0099-01" ] }, { "cite": "54 Ill. App. 564", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5099301 ], "opinion_index": 0, "case_paths": [ "/ill-app/54/0564-01" ] }, { "cite": "132 Ill. 550", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5421468 ], "opinion_index": 0, "case_paths": [ "/ill/132/0550-01" ] }, { "cite": "149 Ill. 182", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5472038 ], "opinion_index": 0, "case_paths": [ "/ill/149/0182-01" ] }, { "cite": "113 Ill. 603", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2865349 ], "opinion_index": 0, "case_paths": [ "/ill/113/0603-01" ] }, { "cite": "50 Ill. App. 358", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5122628 ], "opinion_index": 0, "case_paths": [ "/ill-app/50/0358-01" ] }, { "cite": "148 Ill. 349", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3061174 ], "opinion_index": 0, "case_paths": [ "/ill/148/0349-01" ] } ], "analysis": { "cardinality": 480, "char_count": 8384, "ocr_confidence": 0.513, "pagerank": { "raw": 3.7237557970192695e-07, "percentile": 0.8939710384659492 }, "sha256": "8b60e0668c74a5d6b33bb5585d5de09faedc22689f2223bfe6605532b51fb543", "simhash": "1:0581e7bd4841ded2", "word_count": 1454 }, "last_updated": "2023-07-14T19:53:36.719815+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Stella Sturges Cook and George D. Cook v. Don A. Moulton, Trustee, and The Globe National Bank of Chicago." ], "opinions": [ { "text": "Mr. Justice Shepard\ndelivered the opinion of the Court.\nThis was a bill filed by the appellee, Don A. Moulton, and afterward amended by adding the appellee, The Globe National Bank, as co-complainant, to foreclose a trust deed made by the appellant to the appellee Moulton, as trustee, to secure a certain promissory note held and owned by the bank, which at the time it was offered in evidence, read, with erasures and interlineations, as follows :\n\u201c \u00a76,000. Chicago, Ill., February 20,1893.\nOn or before three months after date we promise to pay to the order of Don A. Moulton, trustee, of Chicago, at its office, sixty-six hundred & 00 dollars, for value received, with seven per cent interest after date.\nStella Sturges Cook, \u2022 Geo. D. Cook.\nIndorsed; Don A. Moulton, Trustee.\u201d\nIt is admitted that the said note and trust deed were given to secure a pre-existing debt of the appellant George D. Cook, who is the husband of the appellant Stella Sturges Cook, and his brother, for that amount to the appellee, Globe National Bank, and for which the appellant Stella Sturges Cook was in no manner liable.\nThe trust deed described the note as payable \u201c to the order of The Globe National Bank of Chicago, * * * with interest at the rate of seven per cent per annum after date;\u201d and it is not denied but that the note when executed by the appellant Stella Sturges Cook, and when last seen by her, was by its terms payable to the order of said bank, as described in the trust deed and as shown by the note itself, omitting the erasure of the name of the payee bank, and the interlineation in lieu thereof of \u201c Don A. Moulton, trustee.\u201d\nThe premises conveyed by the trust deed were the sole and separate property of the wife, Stella Sturges.Cook.\nThe circumstances under which the conceded alteration of the note was made, were substantially as follows :\nAfter the note and trust deed had been executed by the appellants, the appellant George D. Cook took them to the Globe National Bank, and tendered them to the appellee Don A. Moulton, who appears to have been an officer of the bank. Mr. Moulton, as he testified, thought that because the trust deed ran to him, the note should be made payable to his order, and he suggested to Mr. Cook that he change the note accordingly, and thereupon the name of the bank, as payee, was erased, and the name of Don A. Moulton, trustee, substituted in the handwriting of Mr. Cook, and being so changed, the papers were then delivered to and accepted by Moulton for the bank.\nMoulton does not appear to have ever had any personal interest in the note, but to have acted throughout as a mere trustee for the bank. The change in the note was made in the absence of Mrs. Cook and without her authority, knowledge or consent.\nThe main contention is as to the effect of the alteration so made upon the appellant, Mrs. Cook. Her counsel do not claim that the alteration was made with a fraudulent or wrongful intent, but do insist, with much force of reason and authority, that the note so altered without her consent, authority, or ratification, is not her note or contract.\nWe would be interested to review the authorities applicable to a case of this kind, if we were at liberty to disregard the principles announced in Ryan v. First National Bank of Springfield, 148 Ill. 349.\nThat case was so nearly like this one that if the two are to be distinguished, and we are not prepared to say that they do not possess distinguishable features, it should be left to the Supreme Court to draw the line between them.\nWithout impinging upon what there seems to be decided, although perhaps not, we could not satisfactorily, either to ourselves or to an impartial profession, give reasons for reversing this decree because of such alteration. As to the other contention, that the word \u201c maturity \u201d was erased and \u201c date \u201d substituted therefor after execution and delivery of the note, we think that such apparent alteration is sufficiently explained, as having been made before execution, by the fact that the trust deed described the note as drawing interest after date and not after maturity, coupled with the further circumstances, as appears by inspection of the note itself, submitted by agreement of counsel to the court, that the word \u201c date \u201d is in the same handwriting and ink as the other written portions of the body of the note, except the name of Moulton, trustee, as payee. 1 Greenleaf on Evidence (13th Ed.), Sec. 564.\nThe eighth assignment of error is that the decree awards execution, in the first instance, against the appellants for the amount found to be due. No mention of this error having been made by appellants in their brief, it will be considered as waived. Chicago Public Stock Exchange v. McClaughry, 50 Ill. App. 358; W., St. L. & P. Ry. Co. v. McDougal, 113 Ill. 603.\nThe cross-error assigned by appellees because the Circuit Court sustained the exception of appellants to the report of the master touching the allowance of solicitor\u2019s fees, and refused to allow a solicitor\u2019s fee, is well taken.\nThe provision in the trust deed with reference to solicitor\u2019s fees is identical with that in Cheltenham Improvement Company v. Whitehead, 128 III. 279, and, except in the amount specified, like that in Heffron v. Gage, 149 Ill. 182 (see, also, Telford v. Garrels, 132 Ill. 550, Buckley v. Irons, No. 5563, this term, and Durham v. Behrer, 54 Ill. App. 564), and upon the authority of those cases, a solicitor\u2019s fee should have been decreed; and upon the same authorities five per cent on the amount of the principal sum and interest due was not excessive.\nAlthough perhaps unnecessary, considering the views already expressed, to notice appellees\u2019 motion to strike from the transcript certain named depositions, that motion is denied. Ferris v. McClure, 40 Ill. 99.\nFor the error in refusing to allow, solicitor\u2019s fees the decree is reversed and the cause remanded with directions to the Circuit Court to enter a new decree, including solicitor\u2019s fees, in accordance with the master\u2019s report and the terms of the trust deed, but at the costs in this court of appellants, as the reversal is at the instance of the appellees upon a cross-error assigned by them.\nReversed, with directions.", "type": "majority", "author": "Mr. Justice Shepard" } ], "attorneys": [ "W., I. Culver, attorney for appellants.", "J. B. Sturman, counsel for appellees." ], "corrections": "", "head_matter": "Stella Sturges Cook and George D. Cook v. Don A. Moulton, Trustee, and The Globe National Bank of Chicago.\n1. Alteration op Instruments\u2014Materiality of.\u2014The effect of the alteration of a written instrument depends upon the nature of the alteration, the person by whom, and the intention with which it was made.\n2. SAME\u2014Explanations, etc.\u2014In explanation of erasures and alterai508l^ons ano*e secured by a trust deed, it is competent to refer to the conditions of the deed, the handwriting of, and ink with which the note and alteration are written, to show that such erasures and alterations were made before execution of the note.\n3. Appellate Court Practice\u2014Waiver of Assignments of Error.\u2014 Where an assignment of an error is made but no mention of the same is made in the brief of the party assigning the same, it will be regarded as waived.\n4. Solicitor\u2019s Fees\u2014Foreclosure of Trust Deeds. \u2014Under a trust deed which provides that in case of default the trustee may, in his own name or otherwise, \u201c file a bill or bills in any court having jurisdiction thereof against the said party of the first part, their heirs, executors, administrators and assigns, to obtain a decree for the sale and conveyance of the whole or any part of said premises for the purposes herein specified, by said party of the second part, as such trustee, or as special commissioner or otherwise under order of court, and out of the proceeds of any such sale to first pay the costs of such suit, all costs of advertising, sale and conveyance, including the reasonable fees and commissions of said party of the second part, or person who may be appointed to execute the trust, and five per cent on the amount of such principal, interest and costs for attorney\u2019s and solicitor\u2019s fees,\u201d it is the duty of the court to decree an attorney fee. Five per cent held not excessive.\nBill to Foreclose a Trust Deed.\u2014Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the March term, 1895.\nReversed on cross-errors.\nOpinion filed July 5, 1895.\nW., I. Culver, attorney for appellants.\nJ. B. Sturman, counsel for appellees." }, "file_name": "0428-01", "first_page_order": 426, "last_page_order": 430 }