delivered the opinion of the court:
The plaintiff in error exhibited in the county court of Kendall county in probate sitting, her claim against the executors of the estate of Edward Martin; deceased. The claim seems to have been dismissed in the county court without a trial. The claimаnt appealed to the circuit court, where a hearing was' had before the court and a jury and the claimant was allowed a judgment against the estate in the sum of §62,080. The executors prosecuted an appeal to the Appellate Court for the Second District, and the judgment of the circuit court was reversed and the cause remanded. On a second hearing in the circuit court, also before the court and a jury, the jury returned a verdict in favor of the claimant in the sum of §83,367.73. The case came again into the Appellate Court for the Second District by writ of error. A hearing in that court resulted in a judgment reversing the judgment of .the circuit court, reciting the facts as found by the Appellate Court and refusing to remand the cause. The claimant thereupon sued out this writ of error and has brought the record of the proceeding here for review.
The claim was for the amount of certain checks alleged to have been drawn by the deceased on certain banks, payable to the claimant, aggregating'§53,805 in amount; also for the sum of §3256.76 alleged to have been collected by the deceased on bonds and securities belonging to the claimant. The defense sought to be made was, thаt the checks were not founded on any consideration, and that all amounts collected on bonds or securities belonging to the plaintiff in error had been paid by the deceased to her. These were the controverted questious оf fact in the case.
When .the Appellate Court finds the controverted facts in a case different "from the trial court, and for that reason reverses the judgment of the circuit court in an action at law and refuses to remand the causе, it becomes the duty of the Appellate Court to incorporate in its judgment a.statement of the facts upon which the judgment of reversal proceeded. (Practice act, sec. 88; Purcell Co. v. Sage,
The recital in the judgment of the Appellate Court as constituting the facts found by that court in the case at bar is as follows: “We find as a fact that there was no legal or valuable consideration fоr the checks offered in evidence and upon which we find the verdict of the jury was based. We further find as a fact that there was no contract between Edward Martin and the claimant, either express or implied, for services rendered or to be rendered by the latter to the former; that the promise of Edward Martin to claimant to ‘compensate her as he saw fit’ was not understood by the parties as constituting a legal contract to pay and was not so acted upon by thеm, but was only understood as expressive of an intention on the part of Edward Martin and.an expectation on the part of the claimant that Edward Martin would out of his fortune do better by claimant, in a financial sense, than she could do for hersеlf. We further find as a fact that as to moneys which Edward Martin collected upon bonds or other securities which he had previously given to claimant, either for principal or interest, he had fully re-paid her therefor by the gift to her of other securities of greater value in place of the securities themselves, and by the giving of checks for the interest collected to a greater amount than he had received, said checks being other checks than those involved in the present suit. We find as a fact that she has frequently admitted that she had received all the interest collected by him upon her securities, and that, in fact, that is true,- and she has now no legal claim against his estate therefor.”
This statement is altogether insuffiсient to enable us to determine the legal rights of the parties. The statement that there was no legal or valuable consideration for the checks offered in evidence is but the declaration of a legal conclusion arrived аt by the Appellate Court upon consideration of the ultimate material facts bearing on the question of the consideration found by it to have been established by the proofs. “A check is a draft or order upon a bank or banking house, purporting to be drawn upon a deposit of funds, for the payment, at all events, of a certain sum of money to a certain person therein named, or to him or his order, or to bearer, and payable instantly on demand.” (5 Am. & Eng. Ency. of Law,— 2d ed. — 1029.) The existence of a consideration for the giving of a check is essential to the maintenance of an action against the drawer by the payee, but a-bill of exchange or check for the payment of money, drawn upon a bank оr banking house, is presumed to stand upon a valid and valuable consideration. (4 Am. & Eng. Ency. of Law, — 2d ed. — 186.) The drawing and delivery of a check imports an indebtedness of the drawer to the payee to the amount of the check. (McClain v. Lowther,
The claim of the plaintiff in error did not contain an item claiming compensation for services rendered, and the finding as to the matter of compensation for services, referred to in the second clause of the statement, cannot be understood as referring to any such claim against the estate. Counsel for the defendant in error J. Fielding Martin says the clause (or second finding, as he denominates it,) is surplusage; that there was no claim for services, but that the question arose whether such services constituted" a consideration fоr the checks, and that having found the checks were without consideration “it was unnecessary to say why there was no consideration in another finding,” and, “it is of no consequence how many propositions of law may be contained in this finding, or whether they are good or bad.” If the claimant rendered services for the deceased without an express contract as to the compensation to be paid her, whether liability to pay would arise by implication of law is a question of law, to be determined upon consideration of the facts connected with the services rendered, the relation of the parties, of the expectation of the party rendering the services to' receive compensation, the intention of the party receiving the benefit of the services to pay therefor, and perhaps other facts. Instead of setting forth the conclusion that out of the facts of the case there arose no legal liability to pay for the services, the Appellate Court should have stated the facts upon which the conclusion was based, in order the plaintiff in error could ask the judgment of this court upon the question of implied liability because of the existencе of the facts. If the services of the plaintiff in error were rendered to the deceased under his promise that “he would compensate her as he saw fit,” and with the intention on the part of the deceased and expectation оn the part of plaintiff in error that the deceased would in some way render her a financial equivalent for her services, and the claimant rendered services to the deceased and he executed the checks and deliverеd them to her as in fulfillment of his promise to compensate her “as he saw fit,” these facts should have been stated as the deductions of the Appellate Court as to the facts established by the proof. Had the recital in the judgment set forth thе ultimate material facts as to the rendition of services by plaintiff in error and the promise and acts of the deceased in connection therewith, together with the relation and consanguinity of the parties and their acts in the matter of giving and receiving the checks, and all other ultimate facts bearing upon the consideration for the checks or the lack thereof, plaintiff in error could have asked this court to decide, from such findings of fact, whether, as matter of law, the checks were without consideration and mere gifts, or whether they were to be regarded, in law, as given for value.
The declaration that no liability to render compensation for the services was to be implied, if accepted as a finding of fact leaves no function to be performed by this court, but irrevocably concludes the plaintiff in error, as to this branch of the case, by the judgment of the Appellate Court as to the principles of law applicablе to the facts.
The third clause in the statement made by the Appellate Court is open to the contention in this court that the Appellate Court found that the deceased had fully discharged himself of liability to answer, to plaintiff in error fonthe аmounts so collected by him on her bonds or other securities by making further gifts of other securities to her. A gift is a voluntary, gratuitous transfer of property by one to another. (Williamson v. Johnson,
The Appellate Court having reversed the judgment of the circuit court without remanding the cause and without incorporating in its judgment a finding of the ultimate material facts on which the judgment of.reversal proceeded, we cannot review the judgment of reversal, but must reverse the judgment of the Aрpellate Court and remand' the cause to that court, with directions to enter a judgment affirming, reversing and remanding or reversing the cause without remanding, and if it shall reverse the cause without remanding the same it shall incorporate in its judgment a finding of the ultimate and material facts of the case. Accordingly, the judgment of the Appellate Court is reversed and -the cause so remanded.
Reversed and remanded, with directions.