State Bank of Chicago v. Boyesen

Mr. Presiding Justice Horton delivered the opinion of the court. There is no testimony in this case showing when the money standing to the credit of said Johnson in appellant bank was deposited there or from whom or what source it came. Therefore, so far as appears from this record, that money belonged to said Johnson. By his said check he authorized the payment or appropriation of the amount named therein for the purpose and in the manner stated in his letter inclosing said check to appellant. Said Thweatt was not served personally with process in said garnishee proceeding, neither was his appearance entered in the case. There is no judgment against him in personam. It is urged that the declaration does not state a cause of action. The court had jurisdiction and it is therefore not for appellant to question the judgment. Said Johnson is not a party to this proceeding and can not therefore be bound by the judgment. The testimony fails utterly to show his interest, if any, in the lands, the purchase of which, from said Williams, was contemplated. It is just as reasonable to suppose or imagine that said Johnson was jointly interested in such purchase as to suppose or imagine, as it is urged, that the money represented by said check belonged to said Thweatt. We can not rest a decision upon a theory based upon imagination of what is not proven. That letter states that said money is to be paid to one Williams upon the delivery to appellant of a certain warranty deed. There is no testimony tending to show that such deed was ever delivered to appellant, or that there was ever any offer to deliver the same or any tender thereof. As we understand this case it is simply this: Mr. Johnson put $3,582 of his own money into the hands of appellant with direction to appellant to pay the same to Mr. Williams upon the delivery by said Williams to appellant of a certain warranty deed (the right being reserved to examine said deed before the money is paid). We are unable to discover any theory upon which it may be correctly held that such money can be appropriated to pay a debt due from said Thweatt. Assume it to be true, as contended by appellee, that the letter signed by the cashier of appellant (although written by the collection clerk) stated to Mr. Williams that said money was received from said Thweatt; that does not change the legal rights of the parties to this suit. Mr. Williams is not claiming anything here against appellant. If he had done or suffered anything on account of that letter, appellant' might be estopped as against him, from claiming that said money was not in fact received from said Thweatt. But there is no testimony tending to show that appellee did or suffered anything by reason of said letter. Appellant is not, therefore, estopped by said letter from asserting in this case, and as against appellee, that the statement in said letter that the money came from Thweatt was incorrect. The letter from Thweatt to appellant states in substance that when the warranty deed therein mentioned is placed in the hands of appellant, notice is to be given to attorneys therein named, who would examine the same, and that if said attorneys wired him (Thweatt) that the “ deed is O. K.” that he (Thweatt) would wire appellant “ where to present the deed for payment of purchase money to be paid in cash.” No deed was placed in the hands of appellant as contemplated by said letter. Hence, and of course, no examination of the deed referred to could be made by the attorneys, and said Thweatt never wired appellant where to present said deed for the payment of purchase money. So far as this record shows, there was never any interview between said Thweatt, or any one acting for him, and any one representing appellant, and never any other letter from him received by appellant. The letter from Thweatt and the one from Johnson both mention the same names as parties to the warranty deed, and it may be assumed that they both refer to the same transaction. But it does not follow that the money in bank to Johnson’s credit belonged to Thweatt. Counsel for appellee in their printed argument said that “ Johnson was the confidential agent of Thweatt, who sent the money to him (Johnson) for delivery to the bank.” Counsel make no reference to any testimony to support this statement, nor have we noticed any such testimony. Neither is there any testimony to warrant the serious imputation contained in said printed argument, when it is there said that “ We may surmise that Johnson could not be induced to perjure himself for the benefit of Thweatt or the bank.” When there is no reliable testimony upon which to base such an imputation it should not be made. This is a proceeding at law, and the appellee is not entitled to recover in this suit unless said Thweatt could maintain a judgment against appellant in a suit at law prosecuted by him personally and in his own right. The testimony in this record would not warrant a recovery' by Thweatt against appellant for the money represented by said check drawn by said Johnson. Therefore appellee can not sustain such a recovery. Webster v. Steele, 75 Ill. 544. This court has jurisdiction to review a case upon the merits when a jury was waixrnd and the cause submitted to the court for trial, although no propositions of law were submitted to the court for its holdings thereon. Flood v. Leonard, 44 Ill. App. 113; Armstrong v. Barrett, 46 Ill. App. 194; Hollenberg v. Tompkins, 49 Ill. App. 325. The judgment of the Circuit Court is reversed and the cause remanded.