118 Ill. App. 670 | Ill. App. Ct. | 1905
delivered the opinion of the court.
Appellant’s attorneys contend that the trial court erred in refusing to quash the deposition of appellee which was read in evidence, that the letters of the defendant were improperly admitted, that the suit was barred by the limitation of the policy, and that the letters admitted did not show a waiver of that limitation by the company.
The objection to the deposition is based upon the certificate of the official character of the notary public before whom it was taken. Such certificate is required by section 30, chap. 51, E. S., when the dedimm postestatem or commission is directed to any judge, master, notary or justice. In the present case it was addressed to a specified individual who happened to be a notary, and no such certificate of official character seems in such case to be required. A certificate under seal of court was, however, subsequently attached to the deposition, which if necessary at all it was competent to have done before the deposition was read in evidence. Scott v. Bassett, 186 Ill. 98-102. This certificate states that the commissioner was “at the time of taking the foregoing acknowledgment a notary public,” etc., authorized by the laws of the State of Nebraska to take and certify acknowledgments “ or proofs of deeds and other instrumeats,” etc. All that the statute requires is a certificate of the official character of the notary. The certificate in question fulfills the requirement. It is not required by the statute that the certificate shall state the notary was authorized by the laws of the State where he resides to administer an oath. In this case the certificate states that the notary was authorized to take and certify proofs of “other instruments” as well as deeds, but whether this would necessarily imply authority to administer oaths we need not inquire. He was authorized to administer oaths in the special case by his commission from the court here, which authorized him to take the deposition of the witnesses “ on the oath or affirmation of the said witness by you first duly in that behalf administered.” It is not necessary that the commissioner be a notary public or other officer authorized by the law of the State where he resides to administer oaths. The motion to quash was properly denied.
Objection was made to the introduction of appellant’s letters in evidence. They were produced by appellee, in whose possession they were ,and to whom they were addressed, were competent and properly admitted. How he received them, whether by mail or otherwise, is not material.
The important question is whether the letters established a waiver by appellant of the limitation as to the time when suit should be brought upon the policy. If the limitation was not waived by the company, suit could not have been commenced within three months after receipt of proofs of injury at the company’s office, nor later than seven months thereafter. Proofs were filed October 1, 1901. Suit could not therefore be commenced before January 1, 1902, nor after April 30th of that year, leaving four months only within which appellee could sue. Meanwhile appellant was writing, deprecating a resort to legal proceedings, and asking appellee to accept less than the full amount of his demand. January 2, 1902, appellant wrote that it desired to pay appellee all that his policy called for. It had previously written that it would endeavor satisfactorily to adjust the matter without recourse to litigation, which was expensive and which it desired to avoid. It had before written that it would take its time to investigate fully, and if it concluded appellee was not entitled to the amount claimed it would not object to adjudication in court. Appellee had acted as agent for appellant and paid premiums on the policy in controversy nearly ten years. His relations with the company in view of the statements of the letters seemed to warrant the expectation that appellant would keep its agreement and adjust the claim if not pressed. Appellee testifies that he relied on appellant’s representations or he would have sued long before he did. Stipulations to sue if at all within a time limited by the policy and less than the statutory limitation, may be waived by the parties. Slight evidence of waiver will be sufficient. If the company misled appellee into believing that it meant to settle, it cannot complain if it is held estopped. May on Insurance, vol. 2, sec. 504. The alleged waiver in this case is in writing. There is no dispute as to the facts. Appellee tried to get a prompt decision, but appellant put him off. We think appellee might very well have supposed from the company’s letters and conduct that appellant intended to pay and only desired time to satisfy itself of the propriety of. appellee’s claim; and that if it was not satisfied as to this it would not object to adjudication in court without regard to the limitation of the policy. Appellant must be held to have waived the limitation. Some of the cases which support the view we have taken are Home Ins. Co. v. Myer, 93 Ill. 271-276; Andes Ins. Co. v. Fish, 71 Ill. 620-625; Derrick v. The Lamar Ins. Co., 74 Ill. 404-408; F. & M. Ins. Co. v. Chesnut et al., 50 Ill. 111-117; Bish v. Hawk-eye Ins. Co., 69 Iowa, 184-187.
The judgment of the Superior Court must be affirmed.
Affirmed.
