{ "id": 2604220, "name": "Emanuel J. Petrue v. Wakem & McLaughlin", "name_abbreviation": "Petrue v. Wakem", "decision_date": "1902-01-16", "docket_number": "", "first_page": "463", "last_page": "469", "citations": [ { "type": "official", "cite": "99 Ill. App. 463" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "10 Ill. App. 488", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 852640 ], "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/ill-app/10/0488-01" ] }, { "cite": "70 Ill. App. 407", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5250277 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/70/0407-01" ] }, { "cite": "25 Ill. 35", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 443603 ], "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/ill/25/0035-01" ] }, { "cite": "73 Ill. 197", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5318392 ], "opinion_index": 0, "case_paths": [ "/ill/73/0197-01" ] }, { "cite": "48 Ill. App. 406", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5131305 ], "opinion_index": 0, "case_paths": [ "/ill-app/48/0406-01" ] }, { "cite": "138 Ill. 67", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5447467 ], "opinion_index": 0, "case_paths": [ "/ill/138/0067-01" ] }, { "cite": "35 Ill. 250", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5257258 ], "opinion_index": 0, "case_paths": [ "/ill/35/0250-01" ] } ], "analysis": { "cardinality": 660, "char_count": 14073, "ocr_confidence": 0.577, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.3213106246734848 }, "sha256": "253551f9d4a3b1702de0c32aaa4c742adf1134d9fd1d893ac3a68e6e81218b51", "simhash": "1:72371e33a58bef5e", "word_count": 2422 }, "last_updated": "2023-07-14T18:49:57.366340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Emanuel J. Petrue v. Wakem & McLaughlin." ], "opinions": [ { "text": "Mr. Justice Adams\ndelivered the opinion of the court.\nThe check never having been indorsed by appellees, to whose order it was made payable, and it having been lost, and appellees having made diligent search for it, without being able to find it, all of which appears from the preceding statement, it was competent to prove its contents by secondary evidence. McMillan v. Bethold et al., 35 Ill. 250; O\u2019Neil v. O\u2019Neil, 123 Ib. 361.\nThe contents of the check were admitted on the trial by appellant\u2019s counsel, which admission, with the proof of nonindorsement, loss of the check, and inability to find it, on diligent search made, constituted a prima facie case for appellees. Appellant\u2019s counsel contends that the Petrue American Importing Company is a de facto corporation, and that \"appellees having done business with it as a corporation, are estopped to deny its corporate existence, and in support of this proposition cite Bushnell v. C. I. M. Co., 138 Ill. 67; Tarbell v. Page, 24 Ib. 46, and Walker Paint Co. v. Ruggles, 48 Ill. App. 406. In the last case it does not appear from the report that the corporate existence of the paint company was disputed. In each of the other cases relied on by appellant\u2019s counsel, the only defect in the organization of the company was failure to have the certificate of complete organization recorded. These cases have no application to the present case, in which there is no evidence of even an application for a certificate of complete organization. No articles of incorporation, or proper evidence of subscriptions for stock, were produced on the trial. On the contrary, appellant testified that he thought the license to open subscription books sufficient.\nIn Bushnell v. C. I. M. Co., supra, the court say:\n\u201c The necessary steps to perfect that organization were all taken as required by the statute, except that the final certificate was not recorded. It is shown by the bill that upon the issuing of that certificate its directors elected the proper officers and proceeded to the transaction of business as a corporation, and continued to act as such until the filing of this bill, a period of more than five years. That these facts establish a corporation defacto is settled by numerous decisions of this court,\u201d citing numerous cases.\nNo decision, so far as we are aware, goes to the length of holding that there may be a defacto corporation merely by taking out a license to open books for stock subscriptions. In Bigelow v. Gregory, 73 Ill. 197, the court held, that where individuals seek to form themselves into a corporation under a general law, it is only in pursuance of the provisions of the statute for that purpose that corporate existence can be acquired. Ib. 201. It was held in that case that the persons who undertook to form themselves into a corporation, but who did not comply with the statutory requirements, were liable as partners. The evidence shows that appellant did business under the assumed corporate name, and it is difficult to perceive how appellees could have transacted business with him in any name other than the business name which he had assumed, and was doing business in. That he was the company is very evident from his own testimony. The following questions were asked appellant and answers given :\nQ. \u201c Do you remember the capital stock of this so-called corporation \\ \u201d A. \u201c Yes, sir.\u201d\nQ. \u201c How much ? \u201d A. \u201c I think it was $50,000.\u201d\nQ. \u201c Who put in $50,000 ?\u201d A. \u201cI put in the most, and two of them put in one share each.\u201d\nAppellees\u2019 counsel having admitted on the trial that the check was received in payment of their claim, it must be conceded that their remedy is on the check, and on this theory the cause was tried. Appellant\u2019s counsel urge, in argument, the following propositions:\n1. That it was the duty of appellees to endeavor to collect the amount of the check from the bank.\n2. That the claim for which the check was given has been paid.\n3. That appellees were negligent in losing the check and therefore the loss of the amount thereof by reason of the bank\u2019s failure, should be borne by them.\n4. That the finding should have been for appellant, on his plea of non-joint liability.\nThe check was lost within a few hours of its receipt by appellees. That a lost check can not be presented for payment by the payee, is a self-evident proposition, and that the bank is not liable on a cheek until it is presented for payment, is settled law in this State. Munn v. Burch, 25 Ill. 35, 40; Niblack v. Park Nat. Bank, 169 Ib. 517,520-21; Gage Hotel Co. v. Union Nat. Bank, 171 Ib. 531; Greenebaum v. Am. T. & S. Bank, 70 Ill. App. 407.\nThe Munn case, supra, is the leading case on the subject and in that case the court say:\n\u201c The universal custom shows us what the contract of alt the parties is. It shows us that the banker, when he receives the deposit, agrees with the depositor to pay it out on the presentation of his checks, in such sums as those checks may call for, and to the person presenting them, and with the whole world he agrees that whoever shall become the owner of such check shall, upon presentation, thereby become the owner and entitled to receive the amount called for by the check, provided the drawer shall, at that time, have that amount on deposit.\u201d\nThe views expressed in the language quoted have not been departed from, but, on the contrary, have been adhered to in subsequent decisions. In Greenebaum v. Am. T. & S. Bank, supra, this language is used :\n\u201c As between banker and depositor, the rights do accrue as of the time of the deposit. As between banker and transferee of the deposit, however, neither Munn v. Burch, nor any other authority cited, holds that any rights accrue until presentation of the check.\u201d\nOn the trial it was admitted by counsel for appellant that the check was given for the claim of appellees, and appellant, who, presumably, knows more about the facts than does his counsel, testified that he paid appellees\u2019 bill with the check, and in no other way. This is a sufficient answer to the claim of payment. We cannot concur in the view that the loss of the amount of the check was caused by the loss of the check itself. Appellees promptly notified aopellant of the loss and requested another check, and, although in case of the loss of a check, payable to the order of the payees and not indorsed by them, as was the case under consideration, it is not necessary in a suit on the lost check, to indemnify the drawer (Edler v. Uchtmann, 10 Ill. App. 488, 496, and authorities cited),' the appellees agreed to give a bond of indemnity, nevertheless, appellant persistently refused to give another check, and intimated that he would not do so until the end of a year from the time the check was lost,-which would have been.after the failure of the bank. The giving the check was a solemn admission that the claim of appellees was due and payable, and had appellant given to appellees another check and notified the bank not to pay the lost one, as we think he should have done under the circumstances, he would have been amply protected, and would not have lost the amount of the check by the failure of the bank.\nWe can hardly think appellant\u2019s counsel serious in contending that the finding should have been for appellant on his plea of non-joint liability. After the dismissal as to the Petrue Company and the amendment of the declaration, which amendment was made upon the attorneys for appellees learning, from the examination of appellant, that there was no such incorporated company as the Petrue Importing Company, appellant was the sole defendant charged, and the plea of non-joint liability was no answer to the declaration.\nThe judgment will be affirmed.", "type": "majority", "author": "Mr. Justice Adams" } ], "attorneys": [ "James R. Ward, attorney for appellant.", "Bulkley, Gray & More, attorneys for appellees." ], "corrections": "", "head_matter": "Emanuel J. Petrue v. Wakem & McLaughlin.\n1. Checks\u2014 When Secondary Evidence of the Contents is Admissible. \u2014Where a check is delivered but has never been indorsed by the party to whose order it is made payable, and having been lost and such party having made diligent search for it without being able to find it, it is competent to prove its contents by secondary evidence.\n2. Same \u2014 Admission of the Contents of a Lost Chech Makes a Prima Facie Case. \u2014 The admission of the contents of a lost check with the proof, the non-indorsement, loss of the check, and inability, upon diligent search made, to find it, makes a prima facie case for the owner of the check.\n8. Banker and Depositor \u2014 Implied Contract Between. \u2014 By universal custom, when a banker receives a deposit he is held to agree with the depositor to pay it out on the presentation of his checks in such sums as such checks may call for, and to the person presenting them, and in effect he is held to agree with the whole world that whosoever may become the owner of any such check will, upon presentation thereof, be entitled to receive the amount called for by it, provided the drawer shall at that time have the amount on deposit.\nAssumpsit, on the common counts. Appeal from the Circuit Court of Cook County; the Hon. Area N. Waterman, Judge, presiding. Heard in this court at the March term, 1901.\nAffirmed.\nOpinion filed January 16, 1902.\nStatement. \u2014 This is an appeal from a judgment in favor of appellees and against appellant for the sum of $386.83. The cause, by agreement of the parties, was tried by the court without a jury. Appellees first declared against Emanuel J. Petrue and the Petrue American Importing Company, but subsequently, by leave of the court, dismissed as to the company and amended their declaration by declaring against Emanuel'J. Petrue only, doing business in the name and style of Petrue American Importing Company.\nThe facts are substantially as follows: Appellees were warehousemen and custom house brokers, and, as such, had done business for appellant. November 25, 1896, appellees wrote a letter addressed to \u201cPetrue American Importing Company,\u201d in which the following occurred: \u201cWe enclose you herewith our bill for ocean freight, duties, insurance and clearing charges, amounting to $322.43, for which kindly mail us a check.\u201d November 27,1896, about eleven o\u2019clock a. m., the appellant called at the office of appellees and left with Ralph N. Andrews, appellees\u2019 clerk, a check signed \u201cPetrue American Importing Company,\u201d on the bank of Wasmandorf & Heineman, for the sum of $322.43, payable to the order of Wakem & McLaughlin, the appellees. It was admitted on the trial that the check was given and received in payment of appellees\u2019 claim, at the time. Andrews receipted the bill for the claim of appellees and gave the receipt to appellant. When Andrews received the check he laid it on his desk, and when Mr. Wakem came into the office, about noon, Andrews showed the check to him, and Wakem looked at it, saw it was for the full amount of the claim, and handed it back to Andrews, who says it lay on his desk for two or three hours. The evidence shows that the check was lost, and that every search possible was made for it in the afternoon of the day it was received and the next morning, and that it could not be found. The check was not indorsed by appellees, to whom it was made payable. These facts are not controverted. Subsequently, the following correspondence took place between the parties:\n\u201cNovember 28, 1896.\nPetrue American Importing Company, Chicago.\nDear Sirs : Having mislaid or lost your check of $322.43, you would greatly oblige us by mailing us a duplicate. At the same time you would have to notify the bank, when you send the duplicate, to refuse the payment of the original, if ever presented. This precaution will fully cover you and ourselves. We are sorry to cause you this additional trouble, and remain,\nWakem & McLaughlin.\u201d \u201cNovember 30, 1896.\nMessrs. Wakem & McLaughlin, Chicago, III.\nGentlemen : We do not like to issue a duplicate check\ninside of a week. You will surely find it by making a thorough search. Yours truly,\nPetrue American Importing Company.\u201d\n\u201c December 11, 1896.\nPetrue American Importing Company, Chicago.\nDear Sirs : You will greatly oblige by giving us check\nfor $322.45, as a duplicate for the check of same amount dated November 26, which we have lost or mislaid. We have notified you of this loss November 28th.\nWakem & McLaughlin.\u201d\nAppellee Wakem had a conversation with appellant about furnishing indemnity, and told appellant that appellees were willing to furnish any indemnity the bank might ask; that if a bond was desired, appellees would give it. Appellant declined to give another check, and once told Wakem that the bank had advised him to wait a year, before giving a duplicate check. Appellant testified that he did not pay appellees\u2019 bill in any other way, than by giving the check. Appellant has constantly refused to give a duplicate check. Appellant claimed that the Petrue American Importing Company was an incorporated company, and that he was its president, but when called on to produce its articles of incorporation, he only produced a license from the Secretary of State, authorizing appellant and two other persons, as commissioners, to open books for subscription to the capital stock of the Petrue American Importing Company, and testified that this license was all the paper he had in reference to the incorporation, and that he supposed it was all that was necessary. There is no evidence that a company called the Petrue American Importing Company was ever incorporated. After receiving the license above mentioned, appellant was elected president of the company, and a vice-president and treasurer and secretary (one person) were elected, and business ivas carried on by appellant in the name of the Petrue American Importing Company.\nIt was admitted on the trial that December 21, 1896, the bank of Wasmandorf & Heineman, on which the check was drawn, failed, and that, from November 27, 1896, the date of the check, till December 21; 1896, the bank books showed a daily balance to the credit of the Petrue American Importing Company of from four to eleven hundred dollars.\nJames R. Ward, attorney for appellant.\nBulkley, Gray & More, attorneys for appellees." }, "file_name": "0463-01", "first_page_order": 489, "last_page_order": 495 }