| Ill. | Feb 21, 1907
delivered the opinion of the court:
Appellant insists that the finding o'f fact by the Appellate Court is not such a finding as is contemplated by section 88 of the Practice act; that the finding _is really a conclusion of law and not of an ultimate or controlling fact. It contends that among the other things found as ultimate facts in this case should have been the answers to the following questions : (a) “Was the return of the receipt with the word ‘Lapse’ written thereon equivalent to a request to cancel?” (b) “Was there any consideration for any supposed cancellation?” (c) ‘.‘Did the Metropolitan ever accept any supposed proposition to cancel?” (d) “Did the Metropolitan ever communicate any acceptance of any supposed proposition to cancel ?” (<?) “Was the unearned premium returned or tendered?” (/) “Did the cashier who returned the receipt have any authority to return it?” (g) “Was the contract in question a Missouri contract?” (h) “Did the policy in question have a net value?” (i) “If it had a net value, did such net value carry the policy beyond the date of the death of Hall?” (/) “Did the Metropolitan, by demanding proofs, waive its right to insist upon this supposed forfeiture ?”
A review of the numerous decisions of this court as to what are ultimate facts as applying to a statement of the Appellate Court, and as to whether such facts are properly-stated, will show that this subject is not entirely free from difficulty. What is a legal and sufficient statement of the ultimate facts must depend largely upon the pleadings and evidence of each case. A general rule has frequently been laid down by this court, but the difficulty has always arisen in applying the rule to a given state of facts and pleadings. In the recent case of Martin v. Martin, 212 Ill. 301" date_filed="1904-10-24" court="Ill." case_name="Martin v. Martin">212 Ill. 301, we reviewed the authorities and discussed at length the principle that must govern in these matters, and we there said (p.309) that the Appellate Court, in its finding of facts, “should not find the evidentiary facts and that it should not find conclusions of law, but should find the ultimate controlling facts.” We have held that there may be conclusions of fact or inferences drawn from subordinate or evidentiary facts; that the ultimate facts, when considered with reference to the facts or evidence by which they are established or proved, are the logical result of the proofs, or, in other words, conclusions of fact; that the Appellate Court, on the finding of facts different from the lower court, “is only required to recite in its order or judgment of reversal the ultimate facts in issue, as made by the pleadings or the conclusion of such ultimate fact or facts from the evidentiary facts. Such recital of ultimate facts must include or cover all the material issues made by the pleadings vital to determine a right of recovery.” (Caywood v. Farrell, 175 Ill. 480" date_filed="1898-10-24" court="Ill." case_name="Caywood v. Farrell">175 Ill. 480.) In Brown v. City of Aurora, 109 Ill. 165" date_filed="1883-11-20" court="Ill." case_name="Brown v. City of Aurora">109 Ill. 165, some phases of this question were fully discussed, and it was there stated that the Appellate Court was not required to recite in its final order the evidentiary facts, as that would practically amount to reciting the evidence in the case, and that the legislature never intended a recitation of all the subordinate facts, but only the ultimate or issuable facts upon which the case turned. The.following are some of the cases where this court has discussed and applied the law on this subject: Williams v. Forbes, 114 Ill. 167" date_filed="1885-05-15" court="Ill." case_name="Williams v. Forbes">114 Ill. 167; Hazuk v. Chicago, Burlington and Northern Railroad Co. 138 id. 37; County of LaSalle v. Milligan, 143 id. 321; Hawk v. Chicago, Burlington and Northern Railroad Co. 147 id, 399; Purcell Co. v. Sage, 189 id. 79; Purcell Co. v. Sage, 192 id. 197; Purcell Co. v. Sage, 200 id. 342; Martin v. Martin, 202 id. 382; Davis v. Chicago Edison Co. 195 id. 31.
If all the evidentiary facts were required to be set out in the finding of the Appellate Court, the carrying into effect of the law would be very difficult and burdensome. Neither was it intended that this court should be compelled (in order to decide whether or not the finding of fact was sufficieiit) to review and consider all the evidence in the record.
The briefs of appellant in this case have raised the question as to evidentiary and ultimate facts in such a manner as to require this court to examine the entire record with fully as great care as would have been necessary had the case, under the law, come direct to this court without first having been passed upon by the Appellate Court.
Are not the answers to the ten questions heretofore quoted that appellant insists shall be in the Appellate Court’s statement of the finding of ultimate and controlling facts, in reality facts subordinate or evidentiary to the ultimate and controlling fact found by the Appellate Court,—i. e., that the policy of re-insurance in question was canceled by mutual agreement between appellant and appellee prior’ to the death of said Hall, and appellee’s liability therein terminated by such cancellation? Admitting that all of these questions must have been legally considered by the court in order to reach a proper conclusion in this case, is it not clear that everyone of them is substantially covered and answered in the finding of facts set out by the Appellate Court ? If so, then, under the decisions heretofore cited, the only question for our consideration is whether or not the facts found and recited in the judgment justify the judgment of -the Appellate Court. (City of Spring Valley v. Coal Co. 173 Ill. 497" date_filed="1898-06-18" court="Ill." case_name="City of Spring Valley v. Spring Valley Coal Co.">173 Ill. 497.) “Such finding [of the Appellate Court] is final and conclusive upon this court, and all that we can do is to determine whether, upon the facts so found, the law has been properly applied.” (Aachen and Munich Fire Ins. Co. v. Crawford, 199 Ill. 367" date_filed="1902-10-25" court="Ill." case_name="Aachen & Munich Fire Insurance v. Crawford">199 Ill. 367). The law doubtless requires this court to examine the evidence so far as to find whether there be any competent testimony which, with all reasonable inferences, fairly tends to prove a controverted fact. Illinois Steel Co. v. Olste, 214 Ill. 181" date_filed="1905-02-21" court="Ill." case_name="Illinois Steel Co. v. Olste">214 Ill. 181.
Appellant insists that there is no evidence in the record to justify the conclusion as to the ultimate fact found by the Appellate Court on many, if not all, of the questions heretofore quoted, and which it urges must be considered and decided in order to reach a fair decision of this.case. Let us briefly consider the evidence as to these questions.
It is argued that there is nothing in the record to justify the conclusion that the word “lapse” in this transaction was used as equivalent to “cancel.” A careful reading of the testimony of witnesses Pilling and Cahen shows that both of these witnesses testified that these terms were sometimes used in insurance matters as synonymous, and the evidence tends strongly to show that both the appellee and appellant companies, in their dealings with each other under their re-insurance contract, not only in this case but in other cases, had used the word “lapse” to mean “cancel.” If the rescission of the contract may be implied from circumstances and the conduct of the parties, as it doubtless can be, (Evans v. Jacobitz, 72 P. 848" date_filed="1903-06-06" court="Kan." case_name="Evans v. Jacobitz">72 Pac. Rep. 848; Wehrli v. Rehwoldt, 107 Ill. 60" date_filed="1883-06-16" court="Ill." case_name="Wehrli v. Rehwoldt">107 Ill. 60;) then, without question, there is evidence in the record that fairly tends to uphold the conclusions reached by the Appellate Court, not only as to question (a), but as to questions (c), (d) and (e).
Appellant insists, not only in the original but in the reply brief, that the receipt returned by the cashier, Wetherell, was without authority, and that Wetherell never had jurisdiction over the re-insurance policies and never returned other receipts. This contention is not borne out by the record. Appellant’s general manager, Saclcett, first stated in his testimony that Wetherell had no authority to return the receipt in question marked “lapse” and had never returned any other, but on being shown a letter signed by Wetherell, dated January 6, 1906, discussing insurance policies between appellant and appellee, in which occurs the sentence, “this insurance having lapsed on our books we would ask that you cancel our re-insurance with you,” he was compelled to admit that Wetherell had exercised that authority and had authorized the cancellation of certain other policies.
It is plain from this record that if the policy was canceled, as contended for by appellee, then it would make no difference whether or not the contract was a Missouri contract or whether the policy in question had a net value, or, if so, whether such net value would carry it beyond the date of the death of Hall. If this policy was canceled, (and it could be if proper steps were taken, whether it was made under the Missouri law or the law of any other State,) these last questions would not be material.
We cannot agree with appellant’s contention that there is no evidence in the record justifying the conclusion of the Appellate Court that the Metropolitan, by demanding proof, as shown by the letters quoted in the statement, did not waive its right to insist upon the alleged forfeiture.
The primary and chief insistence, however, of appellant is, that there was no evidence in the record that would justify any conclusion by the Appellate.Court that there was a consideration for the cancellation of the re-insurance contract. Appellant has covered pages of its briefs,—original, reply and supplemental,—with a discussion of this subject. If a valid consideration were required in order to authorize a cancellation of the insurance policy in question; then, if there is any competent evidence in the record that fairly tends to support the conclusion that there was a consideration for the cancellation, it would not be pertinent for us to inquire how slight that consideration. (Williams v. Forbes, supra.) In Sea Ins. Co. v. Johnston, 105 Fed. Rep. 286, it was held that the mutual release from an old contract is an adequate consideration for the rescission. The performance of the act of cancellation by appellee at the request of appellant, and the withholding of further demands or attempts to collect the new premium, might be urged as adequate consideration. The Appellate Court held that when appellant returned the receipt in question marked “lapse,” it in effect refused to pay the renewal premium and asked for cancellation and thereby waived its rights to renew and extend the policy, and that when appellee accepted such waiver and canceled the policy the agreement was consummated; that “each agreement was in consideration of the other.” In the state of the record we must approach the discussion of the question of consideration as if it were admitted that both companies had agreed to cancel the policy in question. Under the agreement for re-insurance, appellee, when it sent its receipt for the premium, was entitled to have an answer as to whether the policy was to be re-insured. If no such answer came, appellee could, under the agreement, cut off all right to reinsurance by making a demand for such premium at least twenty days before October 20, 1901. When the receipt was returned marked “lapse,” appellee was justified in not making such a demand. Insurance companies are in business to make money. Presumably the primary source of their income is the money paid as premiums by policy holders. The right to receive a premium must be considered a valuable consideration. Even admitting that the appellee company could not compel the appellant company to re-insure on the Hall policy and pay the premium, yet the giving up of this right by canceling the contract in September was giving up a consideration of value, even though slight.
It is also argued by appellee that under the contract for re-insurance appellant would not have the right to re-insure, as to the Hall policy, in any other company unless the Hall policy was canceled with appellee. What is a sufficient consideration depends upon the agreement of parties and may be as various as the human mind. (Hare on Contracts, p. 304.) If the Appellate Court was justified in holding that the contract of re-insurance “was canceled by mutual agreement of appellant and appellee prior to the death of said Hall,” the contract of rescission was executed, and in that case consideration would not be an essential part of such an executed contract. Bishop on Contracts, sec. 81; Hammon on Contracts, sec. 315.
Manifestly, from the facts disclosed, appellant company had given authority to its cashier, Wetherell, to take charge of such matters as the canceling of the policy here in question, and in sending the receipt marked “lapse” it was clearly intended to convey the idea to appellee company that there was to be no re-insurance on this policy for the coming year. If Hall had not died on October 2, 1901, there would have been no dispute. After his death, when appellant found it was responsible for $10,000, it endeavored to nullify the return of the receipt marked “lapse” by sending on the check for the premium of the Hall policy for the ensuing year. If, as the Appellate Court "has held, this policy had actually been canceled, appellant company could not then revive the extinct policy without the consent of appellee. (Walters v. St. Joseph Fire and Marine Co. 39 Wis. 489" date_filed="1876-01-15" court="Wis." case_name="Walters v. St. Joseph Fire & Marine Insurance">39 Wis. 489.) We cannot approach the discussion of this subject from the same standpoint as we could had there been no finding of fact by the Appellate Court, As we have shown, there is evidence fairly tending to support the finding of fact by that court. It is not for us to weigh the evidence. The finding of that court, under the law, precludes us from so doing.
Finding no reversible error, the judgment of the Appellate Court must be affirmed.
Judgment affirmed.