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Zegarski v. Ashland Savings & Loan Ass'n

DECEMBER 15, 1954.

STELLA ZEGARSKI, FORMERLY KNOWN AS STELLA WITASZCZYK, APPELLEE,

v.

ASHLAND SAVINGS AND LOAN ASSOCIATION, FORMERLY KING ZYGMUNT THE FIRST BUILDING AND LOAN ASSOCIATION, APPELLANT.



Appeal from the Circuit Court of Cook county; the Hon. FRANK R. LEONARD, Judge, presiding. Affirmed.

MR. JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.

Plaintiff sued to recover a deposit of $10,500, allegedly made by her with the defendant, and interest thereon from the date of the demand for payment. A trial with a jury resulted in a verdict for $11,768.75. After motions for a new trial and judgment notwithstanding the verdict were overruled, the court entered judgment for plaintiff.

This cause was here on a prior appeal (346 Ill. App. 535), wherein we reversed a summary judgment for the plaintiff entered upon plaintiff's motion and opposing affidavits, and remanded the cause for a trial upon the issues raised by the pleadings.

The controversy arises out of the following circumstances. Defendant rented from one Lillian Beutler approximately half of the premises at 4754 South Wood street in Chicago, which was a store on the ground floor. On the large plate glass window of the store front appeared "O.H. Beutler, Mortgage, Insurance," and underneath the name of the defendant. On the entrance door appeared the name of the defendant and also the names of Albert Beutler, attorney, and Lillian Beutler, real estate and insurance. Within the premises was a partition across the width of the store, which had two windows serving two cages, resembling tellers' cages in a bank. Upon the window of one of the cages appeared the name of the defendant. Upon the other window appeared the names of Otto Beutler and Lillian Beutler. Otto Beutler was the father of Lillian, and Albert Beutler, the attorney and treasurer of the defendant, is her brother.

On June 14, 1945, plaintiff, during the regular business hours of the defendant, went to its place of business and was there met by Lillian Beutler at the window in one of the cages. Lillian Beutler asked her what she wanted, and plaintiff stated that she had some money she would like to deposit with the building and loan association. Lillian said, "All right," and plaintiff turned over $10,500 to her made up of a check for $10,000, which she endorsed, and $500 in cash. Plaintiff then received what is ordinarily called a certificate on defendant's letterhead. It was typed and acknowledged the receipt of the $10,500. This certificate plaintiff placed in her vault. In December 1946, plaintiff called at defendant's place of business to collect the periodical interest on her deposit. Lillian then told her that she should change her certificate. Plaintiff procured the certificate from her vault and delivered it to Lillian, who advised her she would send her another by mail. In due course plaintiff received through the mail the following document:

"Lillian Beutler Real Estate and Insurance 4754 S. Wood Street, Chicago, Illinois

Phone: Lab. 6058 Hours 9 A.M. to 9 P.M.

Office Closed Tues. & Fri. at 6 P.M. December 14, 1946

To Stell Witaszczyk or Mae B. Sendra:

This is to certify that I am holding the sum of Ten Thousand Five Hundred ($10,500.00) Dollars deposit left to bear interest at four (4) per cent per annum.

Said sum of Ten Thousand Five Hundred ($10,500.00) Dollars can be had at any time upon presentation of this receipt.

Lillian Beutler."

Each time that plaintiff went to defendant's place of business to collect interest she saw no one in the premises except Lillian. Some time in September 1947, plaintiff appeared to be disturbed by rumors affecting defendant's business condition. She went to its place of business several times and found it closed. One evening she found the door open and a long line of people outside waiting to get in. When she entered she talked to Albert Beutler, the brother, and showed him the paper she received through the mail, identified in the record as Exhibit 4, and asked for her money. She testified he told her, "We can't do nothing about it." She then repaired to the state's attorney's office to make her complaint of their refusal to return her money and for the state's attorney to investigate. It appears Lillian Beutler absconded, and no part of the deposit made by plaintiff was returned to her.

The evidence discloses that Albert Beutler, as treasurer of the defendant, prepared and filed with the state auditor, pursuant to the requirements of the statute, reports for the fiscal years ending May 31, 1945, and May 31, 1946. Each of these reports required the defendant to list "all employees . . . appointed to any position requiring the receipt, payment, management or use of money belonging to the Association, or whose duties permit them to have access to or custody of any of its monies or securities, or whose duties permit them to regularly make entries in the books or other records." One of the names listed under the quoted caption appears, "Lillian Beutler. No. of Months Employed, 12. Position, custodian." The minutes of the annual meeting of ...


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