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Silverman v. First Fed. Sav. & Loan Ass'n





APPEAL from the Circuit Court of Cook County; the Hon. SIDNEY A. JONES, JR., Judge, presiding. MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Ben Silverman, brought this action in the circuit court of Cook County seeking to recover $15,000 plus interest to date allegedly owed him by defendant, First Federal Savings and Loan Association of Chicago. The money allegedly was owed plaintiff on a matured certificate deposit he had purchased from defendant in the late 1960's. The jury's general verdict was returned in favor of plaintiff. However, the jury also returned an answer to a special interrogatory which the trial court found to be inconsistent with the general verdict. Based on this finding, the trial court entered judgment for defendant notwithstanding the verdict, and plaintiff brought this appeal.

We reverse and remand for a new trial.

The primary controversy at trial was whether plaintiff had ever purchased from defendant a $15,000 certificate of deposit. Plaintiff, who held many other savings accounts and certificate of deposit accounts with defendant, asserted that on or about January 10, 1967, he purchased from defendant a $15,000 certificate, number VR410380, with a one-year maturity date. Defendant contended plaintiff never purchased such a certificate. Defendant alleged it issued a $15,000 certificate to another Ben Silverman, different from plaintiff, on January 10, 1968. Defendant maintained plaintiff was falsely asserting a claim to this certificate. Defendant presented conclusive and uncontradicted evidence that the other Ben Silverman had been issued a $15,000 certificate, number 6-VR-10380, on January 10, 1968, and the other Ben Silverman had been paid the face value of this certificate plus interest in January 1970. It appears from the record that counsel for both plaintiff and defendant assumed that the numbers VR410380 and 6-VR-10380 represented the same account. However, the evidence presented does not conclusively show this.

Plaintiff never introduced his certificate into evidence. He testified he had been robbed in August 1969 and had lost several savings account books and the certificate as a result, and thus he could not produce the certificate. However, to prove he had once possessed such a certificate, plaintiff contended the following.

In early 1968, plaintiff visited defendant's place of business and requested from a savings counselor, William Kennedy, a statement of earnings on all his accounts so he could make out his income tax returns. On April 10, 1968, Kennedy sent a letter to plaintiff in response to his request. The letter told plaintiff of his earnings on one of his accounts. The letter explained that no earnings statement was being given on some of his certificate of deposit accounts because such statements were only issued in the year of maturity and these accounts had not yet matured. Relating to this, the letter said, "Since your savings certificate number [] * * * 6-VR-10380 did not mature in 1967, no earnings statement [is being] issued."

During plaintiff's case-in-chief another savings counselor, Lucille Brandt, was called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). She said that it would have been "good banking practice" for a counselor such as Kennedy to check the signature cards on the accounts before sending such a letter. She said Kennedy must not have done this because the signature card for that certificate showed the signature, name, and address of the other Ben Silverman.

After receiving the letter, plaintiff again visited Kennedy in April 1968. He wanted to find out how much interest had been earned on other accounts not mentioned in the letter. He received from Kennedy an index card with handwritten notations on it. Three accounts were listed on this card. The first line read, "4-10380 — $15,000.00 — Jan. 10, 1968 — $767.19." The $767.19 allegedly referred to the interest earned on the account.

After plaintiff was robbed in August 1969, he went to defendant's place of business and saw another savings counselor, Eugene Bensinger. This meeting took place on September 22, 1969. Plaintiff apparently told Bensinger that he had lost only the one certificate, number VR410380, and he did not tell Bensinger about the other certificate and account books that had been taken. Bensinger had plaintiff fill out a lost certificate affidavit. Bensinger kept this affidavit but gave plaintiff a "receipt for lost certificate affidavit." The lost certificate affidavit was not produced at trial. Nevertheless, defendant stipulated that one had been filled out but contended it was unable to find one in its records. The receipt was admitted into evidence. On it Bensinger had written, "Lost Certificate Affidavit #VR-4-10380 Prin. Balance $15,000.00 for re-issue in 30 days."

Brandt, plaintiff's section 60 witness, testified that it was possibly the duty of a savings counselor, such as Bensinger, to check the signature cards on the account before issuing such a receipt. Bensinger testified that this would not be done until afterwards. Bensinger alleged that his notation on the receipt calling for re-issue of the certificate in 30 days meant only that it would be re-issued if the affiant was found to be the true owner of the account. After his meeting with Bensinger, plaintiff took no further action concerning his account until 1976. Also, the defendant allegedly took no action concerning the lost certificate affidavit that had been filed by plaintiff.

In 1976, plaintiff visited defendant and saw Lucille Brandt. He asked her about his account. When she heard the prefix was VR, she told plaintiff that those kinds of accounts had been phased out in the early 1970's and when defendant was phasing them out it had informed all of its customers to either open new accounts or close the accounts. She asked plaintiff if he had done either of these, to which he answered no. She said she would check for him and she would contact him later.

Two months later, plaintiff saw Brandt again. She told him that the account he had asked about was not his. She showed him a signature card of an account that had been closed in 1970. The number on the card was 6-VR-10380. The signature card was for the other Ben Silverman. She also showed plaintiff a cancelled check for $15,000 which defendant had given to the other Ben Silverman. Plaintiff looked at the endorsement on the check and said the signature was not his. Brandt had plaintiff fill out an affidavit for forged endorsement. Thereafter, defendant refused to pay plaintiff the amount he claimed was owed.

The case went to the jury with the following instructions which are important here. The burden of proof instructions that went to the jury were those submitted by defendant. The first two paragraphs of the burden of proof instructions stated that plaintiff had the burden of proving:

"[T]hat the Plaintiff, Ben Silverman, was the true and rightful owner of Certificate of Deposit Number VR-4-10380, in the principal amount of $15,000.00, issued by Defendant, First Federal Savings and Loan Association of Chicago, on January 10, 1968.

[T]hat the Plaintiff became such true and rightful owner of Certificate of Deposit Number VR-4-10380 by virtue of his purchasing same from the Defendant on the said January 10, 1968, and paying to the ...

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