{ "id": 5301573, "name": "Ida E. Schmidt v. Emma A. McBean et al.", "name_abbreviation": "Schmidt v. McBean", "decision_date": "1901-11-26", "docket_number": "", "first_page": "421", "last_page": "427", "citations": [ { "type": "official", "cite": "98 Ill. App. 421" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "86 Ill. App. 341", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5271963 ], "pin_cites": [ { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/ill-app/86/0341-01" ] }, { "cite": "33 Ill. 212", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5211703 ], "opinion_index": 0, "case_paths": [ "/ill/33/0212-01" ] }, { "cite": "125 Ill. 626", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2938144 ], "opinion_index": 0, "case_paths": [ "/ill/125/0626-01" ] } ], "analysis": { "cardinality": 625, "char_count": 12529, "ocr_confidence": 0.552, "pagerank": { "raw": 5.912794380632971e-08, "percentile": 0.3695167169977864 }, "sha256": "738b7a3e24ad9f1ec04e70f48ec08364e46637222648ea199f15a0a572150628", "simhash": "1:b813c2b87c87989f", "word_count": 2163 }, "last_updated": "2023-07-14T15:14:32.769923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ida E. Schmidt v. Emma A. McBean et al." ], "opinions": [ { "text": "Mr. Presiding Justice Freeman\ndelivered the opinion of the court.\nIt is first contended by counsel for appellee, that the guardian had no power to sell or authorize the sale of the judgment, and that the Probate Court had no power to authorize or direct such sale. The statute (Chap. 64, Sec. 17), provides that \u201c The guardian shall settle all accounts of his ward and demand and sue for, and receive in his own name as guardian, all personal property and demands due the ward, or with the approbation of the court compound for the same, and give a discharge to the debtor upon receiving a fair and just dividend of his estate and effects.\u201d The argument is that this statute is a limitation upon the common law powers of guardians; that if, before the statute, the guardian might have compounded, released or sold the ward\u2019s choses in action, he can now do only what is in accordance with the exact terms of the statute; that the statute now requires him to demand and sue for the ward\u2019s claims, and does not allow him to sell them to third parties at a discount.\nThat a guardian has the power to sell the ward\u2019s personal property without an order of court except where such sale is prohibited by statute, seems to be unquestioned, lie will be liable on his bond for any abuse of this power, but the vendee will take a good title unless he has notice of the guardian\u2019s fraud. The power to sell is said to extend to a note or debt including a mortgage securing the same. (Woerner\u2019s Am. Law of Guardianship, p. 179; Am. Eng. Ency. of Law, Yol. 15, p. 56.) It is argued, however, that inasmuch as the statute of this State above quoted affirmatively requires the guardian to \u201cdemand, sue for and receive * * * all personal property and demands due the ward,\u201d these positive requirements exclude the common law right to sell a chose in action. In support of this view reference is had to Hayes v. Mass. Life Ins. Co., 125 Ill. 626. In that case it is held that while at common law, a guardian might have compromised or submitted to arbitration claims and demands due the ward\u2019s estate, \u201cit is manifest that when the legislature in the section referred to, undertook to define the powers and duties of guardians, and expressly provided that as to demands due the ward the guardian might \u2018with the approbation of the court compound for the same and give a discharge to the debtor, a change and modification of the common law was intended. If before this statute the guardian might, in the exercise of his own honest discretion, compound and release a demand due his ward, after the passage of this statute he was clearly required to procure the approbation of the proper court before exercising such power;\u201d and it is said that this statutory requirement \u201cwas intended by the legislature as an additional safeguard and protection to the ward,\u201d etc. This language is used with reference to the last part of the section referred to, viz., that which authorizes the guardian to \u201ccompound\u201d for demands due the ward, with the approbation of the court. The case holds that such composition can not be had under the statute except with the \u201capprobation of the court.\u201d But in the same decision, reference is made to an earlier case (Bond v. Lockwood, 33 Ill. 212), in which it was held the statute in question \u201cwas not designed and did not constitute a complete code, and that the purpose of the legislature was to confer upon the Probate Court the power to appoint guardians and to regulate their conduct according to the common law.\u201d In Bond v. Lockwood the court says that \u201c while some of its (the statutes) provisions were declaratory of the common law and were appropriately introduced in conferring jurisdiction upon a new tribunal, it is evident that many of the powers and duties, rights and liabilities of guardians are not by the statute specifically defined. The statute contains such provisions as were necessary to define the nature of the jurisdiction conferred, prescribe the manner of its exercise, and correct some of the defects of the law as it then existed. In other respects the common law regulating the powers and duties, rights and liabilities of guardians was left in force.\u201d If, then, the common law regulating the powers of guardians was left in force notwithstanding the statute in question, the power of sale, one of these common law powers, must still be regarded as in full force and effect.\nIt is, however, urged that the assignment of the judgment was never delivered by the guardian to Beck, from whom the assignee, Perkins, received it. The evidence upon this point, however, we are compelled to conclude justifies the conclusion apparently reached by the learned chancellor in the Superior Court, that the assignment was left by the guardian in the hands of or at least subject to the disposition of Beck, the president of the casualty company. The latter seems to have represented the guardian in the whole conduct of the case. The guardian was appointed and acted as such at the request, of said Beck, and it was the latter who conducted the negotiations with Perkins, purchaser of the judgment, and made out the assignment. Beck seems to have acted in the matter as the attorney and agent of the guardian all the way through, and while he deceived the guardian afterward and concealed the fact that he had collected the money for which the judgment was sold, yet it does appear that the assignment was in his hands and subject to his control in the same way as were other papers left with the casualty company in cases where Shaver acted as guardian. It is true, the guardian says, that in the event the deal went through, he \u201c was to receive the papers,\u201d and that Beck was to let him know \u201cif the deal would be consummated.\u201d But he also testifies that \u201c nothing was said in Beck\u2019s office as to what was to become of those papers if Perkins got ready to consummate the deal; they were simply deposited there for safe keeping.\u201d It is clear, at least, that it was the guardian\u2019s conduct in leaving the assignment with the casualty company under Beck\u2019s control, that made it possible for the loss to occur. \u201c The principle is that when one of two or more innocent persons must suffer loss, upon him whose conduct made it possible for the loss to occur, must the consequences ultimately rest.\u201d Sroelowitz v. Schultz, 86 Ill. App. 341, 347, and cases cited.\nIt appears that Perkins paid for the assignment of the judgment by a check payable to the order of Beck, and not payable to the order of the guardian. But in view of the conclusion that the guardian fully trusted Beck, and left the assignment with him, so that it might be used in case Perkins should decide to consummate the purchase, the fact that the money was paid directly to Beck, who appeared to have authority to collect, and apparently did have, while perhaps not in a high degree prudent on Perkins\u2019 part, can not be regarded as invalidating the purchase.\nIt is urged that the assignees should not be allowed to retain out of the judgment they purchased more than the actual consideration paid therefor. But if the sale to Perkins was valid, he acquired title thereby to the judgment as it stood. We are unable to find any sufficient ground for depriving his assignees of any part of their purchase. The judgment must be affirmed.", "type": "majority", "author": "Mr. Presiding Justice Freeman" } ], "attorneys": [ "Defrbes, Brace & Bitter, attorneys for appellant.", "George Sawin, attorney for appellees." ], "corrections": "", "head_matter": "Ida E. Schmidt v. Emma A. McBean et al.\n1. Guardians \u2014 Power of Sale over the Ward's Personal Property.\u2014 A guardian has the power to sell the personal property of his ward without an order of court, except where such sale is prohibited by statute, and he will be liable on his bond for any abuse of this power; but the purchaser will take a good title unless he has notice of the guardian\u2019s fraud.\n2. Fraud \u2014 Where One of Two Innocent Parties Must Suffer. \u2014 Where one of two innocent parties must suffer a loss, the consequences must ultimately rest upon the one whose conduct made it possible for the loss to occur.\nBill to Set Aside an Assignment of a Judgment. \u2014 Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.\nAffirmed.\nOpinion filed November 26, 1901.\nStatement. \u2014 This is a bill to set aside certain alleged assignments of a judgment for $5,000, recovered by appellant against the city of Chicago, in the Superior Court.\nAt the time the judgment was obtained appellant was a minor, and one George M. Shaver was appointed and acting as her guardian. Her claim against the city had been prosecuted by a corporation known as the \u201c People\u2019s Casualty Claim and Adjustment Company,\u201d employed for the purpose by appellant\u2019s parents. The president of this company was one Charles W. Beck. It was at the suggestion of said Beck, acting for- 'the adjustment company apparently, that Shaver was appointed appellant\u2019s guardian. \u2022 Complainant attained legal age in 1897. About a month thereafter, August 11,1897, her said guardian filed a report in the Probate Court, stating that the judgment was still unpaid and asking to be discharged upon assigning it to appellant. An assignment of the judgment was accordingly executed and turned over to her through said Beck, president of the investment company, who, it subsequently appeared, had already disposed of the same judgment, and received the money therefor more than two years before, meanwhile concealing the fact and apparently appropriating the money to his own use. When delivering the assignment to appellant he is said to have represented to her that the judgment would be paid in about two years. In February, 1899, he wrote that he would look up the matter and see when the judgment would be paid; and again that he had not been able to find out its exact status, but was \u201c quite surprised \u201d to find there had been several transfers, and \"would \u201c take steps to enforce payment to you.\u201d Appellant, becoming suspicious, caused an investigation, and learned that a paper purporting to be an assignment of the judgment to one Ames H, Perkins, executed by Shaver, her guardian, dated March, 1895, two years before his discharge as such guardian, had been filed with the clerk of the court, and that subsequent assignments had been made by Perkins to one Duncan S. McBean, by McBean to the Commercial National Bank, by the bank to McBean again, and by the latter to one J. II. Pearson. Further investigation developed that the assignment by Shaver, the guardian, to Perkins, was made under an order of the Probate Court entered in March, 1895, authorizing such sale for $4,375, which sum Perkins had offered through Beck, the president of the adjustment company. It appears that the guardian had deposited the assignment with the Northern Trust Company Bank for delivery to Perkins upon payment of the sum agreed upon as above. Finding some days after, that Perkins had not paid the money as expected, the guardian took the assignment from the bank, and subsequently, as he testifies, handed it to a stenographer \"employed by the adjustment company, asking her to put it away in the company\u2019s vault, which she did, placing'it in a large envelope, it is said, writh other papers belonging to Shaver, said to have been there for safe keeping. At a period considerably later, Beck, who had then sold the judgment to Perkins and received the money, is said to have told the guardian that there was no immediate prospect of the consummation of the sale;- and Shaver paid no further attention to the matter until the question of ownership arose, in December, 1898,- having meanwhile, in August,-1S97, closed his accounts as guardian, and executed a new assignment of the judgment to appellant. There is evidence tending to show that Beck, the president of the adjustment company, took the original Perkins assignment from the vault and delivered it to Perkins, and received therefor the sum of $4,375, by a check payable to Beck\u2019s own order, dated March 23,1895. Apparently, therefore, Beck had received the money nearly four years before appellant discovered the facts.\nAppellant filed her bill of complaint seeking to set aside the assignments to Perkins- and hiif assignees, and recover the interest which had meanwhile been paid by the city upon the judgment. Appellees answered denying the allegations of the bill, and claiming good title to the judgment. The Superior Court upon the hearing dismissed the bill for want of equity, and from that decree this appeal comes.\nDefrbes, Brace & Bitter, attorneys for appellant.\nGeorge Sawin, attorney for appellees." }, "file_name": "0421-01", "first_page_order": 445, "last_page_order": 451 }