author: Mr. Presidihg Justice Adams

text:
    Gertrude A. Kuechle, Appellant v. Warren Springer, Appellee.
    Gen. No. 14,056.
    1. Election of remedies—when doctrine of, does not apply. The doctrine of election between inconsistent remedies applies solely to the parties to a contract, as, for instance, where there has been a breach of the contract by one of the parties thereto; it has no application as between one of the parties to a contract and a third party, a stranger to the same. Held, in this case, that a decree cancelling a deed for fraud does not preclude a subsequent action for deceit against the person who procured the execution of such deed but was not a party thereto.
    2. Damages—what essential to award of. Damages which are uncertain and remote do not justify the verdict of a jury.
    3. Damages—what allowance justified in action of deceit. Damages which are the natural consequence of the fraud perpetrated should be allowed.
    Action on the case. Appeal from the Superior Court of Cook county; the Hon. Albert H. Frost, Judge, presiding. Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed December 7, 1908.
    Statement by tie Court. The appellant sued appellee for damages for fraudulent conduct and false representations alleged to have caused loss to appellant. The sufficiency of the declaration is not questioned. The defendant pleaded the general issue. The court instructed the jury, peremptorily, to find the defendant not guilty, which the jury did, and the court, after overruling plaintiff’s motions for a new trial and in arrest of judgment, rendered judgment on the verdict.
    November 24, 1888, Calvin DeWolf and Frances DeWolf, his wife, executed to William EL Slosson a lease of sub-lot 4, in Ogden’s subdivision of lot 1, in block 96, in the School Section Addition to Chicago, in Cook county, Illinois, for the term of 99 years from January 1, 1889, for the annual rental of $3,000, payable quarterly, $750 to be paid on the first days of January, April, July and October of each year of the term.
    April 4, 1889, Slosson, lessee, by written instrument of that date, sold and assigned to Warren Springer, appellee, for the expressed consideration of one dollar, his interest in said lease and premises, including a three-story and basement brick building on said premises, which had been sold by the lessors to said Slosson.
    July 29, 1897, Warren Springer and his wife, Marguerite, executed to John E. Maginnis, described to be “of the city of Boston, county of Suffolk and State of Massachusetts”, a quit-claim deed of all their interest in the premises first above described, for the expressed consideration of $25,000. No mention is made of the lease in the deed. Deed recorded August 26, 1897. August 6, 1897, John E. Maginnis, described as “a bachelor, of the city of Boston”, etc., executed a warranty deed to Charles Z. Miller of Chicago, of the said described premises, for the expressed consideration of $100,000. The deed contains no mention of the lease. Deed recorded September 3, 1907.

      August 6, 1907, the same day the deed was executed to Miller, he, Miller, executed to the Chicago Title and Trust Company a warranty deed, in trust, to secure the payment of certain notes, mentioned in the deed as follows: “Whereas, the grantor, Charles Z. Miller, is justly indebted upon his 83 principal promissory notes, bearing even date herewith, payable to the order of himself and by him endorsed and delivered, eleven for five hundred (500) dollars each and ten for seven hundred and fifty (750) dollars each, due one year after date, and sixty-two for one thousand (1,000) dollars each due fifteen (15) months after date. All of said notes bearing interest at six per cent per annum”. No mention is made of the lease in this deed. The trust deed was recorded September 11,1907.
    September 28, 1897, an application was made to the Chicago Title and Trust Company for a guaranty policy of $20,000 on the premises by the Lamar Shoe Company, which is the name of the shoe store in which Maginnis was engaged in business. The application stated that the improvement and leasehold were worth $125,000. A guaranty policy was issued on the application for $20,000 and was delivered to the defendant.
    All the promissory notes mentioned were made and endorsed by Miller, as stated in the trust deed, and four of them were put in evidence by the plaintiff— three of the $1,000 notes and one of the $500 notes. Endorsed on each note is the following -.
    “Trustee's Certificate.
    This is to certify that this note is one of the following eighty-three notes for the aggregate amount of seventy-five thousand dollars: Eleven notes for five hundred dollars each, ten notes for seven hundred and fifty dollars each, sixty-two notes for one thousand dollars each; secured by trust deed to Chicago Title and Trust Company, trustee, recorded in the Recorder’s office of Cook county, Ill., as Doc. No. 2,586,840.
    Chicago Title & Trust Compaby,
    By Wm. O. Niblack, Secy.”

      Maginnis is a brother-in-law of the defendant Springer, and at the time of the transactions in question was engaged in the shoe business, in a store on the premises in question known as 188 East Monroe street.
    Charles Z. Miller testified, in substance, that he paid nothing for the property, and was never able to pay for it at any time; that the deed from Maginnis to him was never delivered to him; that Maginnis took it away and recorded it or that Springer recorded it; that Springer managed the whole business. He says Springer came to his office and said he was agent for John Maginnis, who was the owner of the property, and he, as such agent, wished to sell the property to him; that the building was rented at $9,000 per annum, and that they could easily get $100,000 for the property, and that they, Springer and witness, could put a mortgage for $75,000 on it and would have $25,000 to divide. Miller also testified that he knew nothing of the leasehold and did not learn of it until two or three weeks after he executed the trust deed and notes. He says that Springer gave him $500 for signing a bond for Maginnis relating to some coal lands in Indiana, and thinks that Springer gave him a check for the money. The witness had no property in his own name and was substantially impecunious, and it is a fair and legitimate inference that Springer, who, as the witness says, “managed the whole business”, gave him the $500 for signing the trust deed and the notes. At the time the promissory notes secured by the trust deed were ready for negotiation, Gertrude A. Kuechle and her husband were living in a flat at 4727 Lawrence avenue, in the city of Chicago. The evidence tends to prove that appellant was then the equitable owner of an undivided interest in a number of lots in Council Bluffs, Iowa, for which her husband and Richard E. Turner had paid $18,000, each of them paying $9,000. The title was taken in Turner’s name and the plaintiff’s husband, Edward J. Kuechle, had transferred his interest to the plaintiff. There was an encumbrance of $3,500 on the property. The plaintiff also owned a piece of ground, 36 acres, with a house on it, in Merrill, Lincoln county, Wisconsin, which was encumbered by a trust deed to secure the payment of $3,500, evidenced by promissory notes. The plaintiff had assumed this encumbrance. She, by her husband, who acted as her agent, had listed the property for sale with one Silver, a real estate broker, well known to Springer, as will hereafter appear. Springer called at the plaintiff’s residence in September, 1897, about eight o’clock in the evening, plaintiff and her husband being present, and stated that he had been offered a trade for the flat building in which they were living, and had come to look it over, which he did, found numerous faults with it, said he would not trade for it, and asked plaintiff and her husband if they had not something to sell, when plaintiff’s husband said they had several pieces of property, but wanted most to sell the Merrill, Wisconsin, property, as they had to obtain $3,700 or $4,000 in money in a very short time, to save some property at Council Bluffs, Iowa. Springer said he had some splendid farms in Illinois and Indiana, and asked plaintiff’s husband to come to his office that night and they could make a trade. This was declined, and the next morning plaintiff’s husband, by appointment, called at Springer’s office, with photographs of the Wisconsin property. The interview was without result. Edward J. Kuechle had never met Springer and there is no evidence that plaintiff had ever met him, before the evening he called at their flat. October 5, 1897, was the next time that Mr. Kuechle met Springer. He was walking on Monroe street and Springer hailed him from a buggy in which he was riding, and asked him to get in the buggy, saying he wished to talk with him. Springer then told him that Ms rich friend, a shoe merchant, whose shoe store was at 188 Monroe street, had recently sold that braiding and had taken a series of mortgage notes for $75,000, and that he, Springer, could get a trade for him, Kuechle, on part of the notes,, and that he could trade notes for the Merrill property. Springer also said that the building had been traded for $100,000, and was bringing $9,000 ground rent, and that the notes were good, dollar for dollar. Springer then left Mr. Kuechle in the buggy, went into the office of the Chicago Title & Trust Company, and returned and took Mr. Kuechle to Maginnis, at the shoe store, who agreed to trade notes for the Merrill property if Springer would go to see the property and would say it was all right. They then got into the buggy and Springer asked Mr. Kuechle how much commission he would give him if he would put the deal through, and named $500 as the sum he would charge; but, on Kuechle’s demurring, said he would make it $300, and also said he could handle the whole thing himself, and that he would put it through. Mr. Kuechle said he had to have the cash on the notes; that the mortgage on the Council Bluffs property would be due October 12th, and that he had to have the money, and on Springer saying he would take him around, he said he would not go with him unless he could get cash on the notes. Springer then took Kuechle to the office of B. H. Silver and introduced him to Silver and a Mr. Baddeaux. Silver said the notes were good and could be cashed readily, and said to Baddeaux, “You have got a party who will cash these notes, haven’t you?” and Baddeaux said “Yes”, and that he would have the party at Silver’s office at two o’clock. Kuechle returned to Silver’s office at two o’clock and found Silver and Baddeaux there, and after waiting a while he became impatient and asked Baddeaux why he did not produce his party, when Baddeaux left the office and returned with a Mr. McKinnon, who was introduced to Kuechle as representing the Methodist Church fund, and who said they had about $400,000 to loan, and that they were looking-for those kinds of loans, especially anything guaranteed by the Chicago Title & Trust Co., and that he, MeKinnon, was ready to cash the notes then and there and give a check for them, when Knechle said he had not the notes yet, bnt he would make arrangements to go to Merrill that night, and on his return would want Mc-Kinnon to cash the notes, and McKinnon said, “All right”, and that he would charge 2 per cent, for cashing them, which Kuechle said he was willing to pay. Silver said he would charge something for bringing them together, and Kuechle said “All right.” After this interview Kuechle met Springer and told him he was anxious to close the matter up, that he had to have the money by October 12th to pay on the Council Bluffs property, or he would lose the property. An arrangement was made between them to meet at the office of a Mr. Gemmill at six o’clock that evening, Kuechle to bring his abstract of title with him, and Kuechle met Springer at Gemmill’s office at that time and'gave the abstract to him. Gemmill then drafted a deed of the Merrill property, which was given to Kuechle, who took it to his house and he and his wife signed it and acknowledged it before a notary public. The same evening Springer and Kuechle went to the Chicago, Milwaukee & St. Paul depot to take a train for Wisconsin, and while waiting for the train Springer produced a typewritten agreement, which he asked Kuechle to sign before he, Springer, would go with him to Wisconsin. Kuechle, while objecting that the document shown to him was not what had been agreed on, said, “Mr. Springer, I haven’t got time to go into other deals now. I will have to sign this, and we will go to Merrill”, and then signed the document, which is as follows:
    “I propose to sell your principal, John E. McGinnis, my property at Merrill, Wisconsin, subject to $3,600, in even exchange for $4,000 worth, face value, of trust deed notes, signed by Charles Z. Miller, and payable to the order of himself and by him endorsed, secured on the premises 188 East Monroe street, Chicago, the deed to my said property to run to said John E. MeGinnis, your principal, and the present holder of said notes.
    In consideration of your affecting said trade for me, I agree to pay your expenses in going to Merrill, Wisconsin and viewing the property and returning to Chicago, provided the deal is consummated, and a further cash commission of $300, and to secure the payment of such commission and expenses, I agree that you may retain, until the said • commissions are paid one note for $500 on the said $4,000 of said trust deed notes, provided that if the said trade is not consummated, you are to pay your own expenses and no commission whatever to be paid. The papers to be exchanged at Merrill, Wisconsin, if the said trade is made.
    (Signed) E. J. Kuechle,
    John E. McGinnis
    By Warren Springer, Agent”.
    Springer and Kuechle then went to Merrill, where the former saw the property and said he was ready to trade, and Kuechle gave him the deed and he gave Kuechle the four notes which were put in evidence-three for $1,000 each and one for $500—and they both took the evening train for Chicago. The deed is a warranty deed from Gertrude A. Kuechle and her husband, Edward J. Kuechle, to John E. Maginnis of the Merrill property, by legal description, subject to an encumbrance of $3,500 and interest. It is dated October 5, 1897, and was recorded October 6, 1897, at 11:30 o’clock a. m. Mr. Kuechle arrived in Chicago October 6th at six o’clock in the morning, and went immediately to his residence, and before he had finished his breakfast Silver came to his residence and asked him if the trade had gone through, and Kuechle told him it had, and that he had the notes and would come to his office, which he did, and there saw Silver and asked him to produce his money, in order for him, Kuechle, to get the money on the notes. Silver said Baddeaux was the financial man and Kuechle would have to do business with him. He saw Baddeaux, who pretended that he would have to see Springer before he could do anything. Kuechle then saw McKinnon, who said he would not cash the notes, that it appeared that they were secured on the leasehold and not on the fee. Kuechle testified, without contradiction, that this was the first time he heard anything about a leasehold. Kuechle applied to a number of other persons to sell the notes, but without success.
    January 20, 1898, Gertrude A. Kuechle and her husband, Edward J. Kuechle, commenced suit in the Circuit Court of Lincoln county, Wisconsin, to procure the cancellation of the deed from plaintiff and her husband to John E.Maginnis, making defendants John E. Maginnis and wife and Warren Springer and wife, and such proceedings were had in said suit that, September 24, 1898, at the September term 1898 of the court, the court decreed that the said deed " be cancelled, annulled and set aside A
    The evidence of the defendant, Springer, on the trial of this cause, consisted of his own testimony, a transcript of the proceedings in the Wisconsin court above referred to, and a section of a Wisconsin statute, fixing one year as the time for redemption from any sale of lands sold in conformity with the provisions of the chapter of which the section is a part. Springer, in his testimony, did not deny the fraud charged in the declaration, nor did he produce any evidence in contradiction of it.
    Alden, Latham & Young, for appellant.
    Stedman & Soelke, for appellee.
   Mr. Presidihg Justice Adams

delivered the opinion of the court.

The evidence in this case discloses a deliberate, premeditated, malicious and cunningly devised scheme, by the defendant Springer and his confederates, to defraud, by means of the worthless notes of an insolvent person, unsecured by anything of value, any person whom they could induce to purchase the notes or take them in payment for anything of value, and that the plaintiff fell a victim to this scheme. The fraud, besides being proved by the plaintiff’s evidence, is impliedly admitted by the defendant’s failure to produce any evidence in contradiction of it.

The chief contention of appellee’s counsel is that the proceedings and decree of the Wisconsin court, in which the deed from plaintiff and her husband to .John E. Maginnis was cancelled, is a bar to the present suit. Counsel contend that the prosecution of that suit by the plaintiff to a final decree was a rescission of the contract between her and John E. Maginnis, and precludes her from maintaining the present suit. Whether this contention can be sustained depends on the facts. What are the facts and the relation between the parties 1 The plaintiff in the present suit sues the defendant, Springer, for damages for his fraud, resulting in injury to her. Springer was not a party to the agreement for the deed from plaintiff to Maginnis, nor is he a party to the deed. He has no legal interest in either of those instruments. The sole object of the Wisconsin suit was the cancellation of the deed. No relief was sought or granted as against Springer. The only relief granted was the cancellation of the deed.' Springer, having no legal interest in the subject-matter of the suit, was not a necessary party to the suit.

In Simpson Brick Co. v. Wormley, 61 Ill. App. 460, the suit was against Wormley and two others, and pleas were filed for all the defendants, but were subsequently withdrawn as to all defendants except Wormley, and the trial proceeded to judgment against Wormley without further, action against them. A reversal was sought on the ground that there should have been a rule on the other defendants to plead and a default as against them. The court said: “The evidence shows that no one but the defendant Wormley had any interest in the subject matter of the suit, and he was the only necessary party” (Ib. 463), and the cause was adjudged as if Wormley had been the only defendant.

“On a written agreement the parties can only be sued in the manner in which they have made themselves liable”. Barbour on Parties to Actions, p. 176.

The question, therefore, is whether plaintiff, by bringing the Wisconsin suit, to which Springer was not a necessary party, is precluded from maintaining the present action. For the purpose of the argument Springer is to be regarded as if not made a party to the Wisconsin suit. The doctrine of election between inconsistent remedies, on which defendant’s counsel rely, applies solely to the parties to a contract, as, for instance, where there has been a breach of a contract by one of the parties to the contract. It has no application as between one of the parties to a contract and a third person, a stranger to the contract.

In Nash v. Minn. Title Ins. & Trust Go., 163 Mass. 574, the court say: “In rescinding a contract, and in enforcing rights growing out of such rescission, one would expect to look only to the other party to the contract. The nature and effect of such rescission are such that they can have no consequences except as against the other party to the contract”. In that case the plaintiff had purchased certain bonds of one Davis, induced thereto by alleged fraudulent representations of the defendant corporation, and, after rescinding the contract between him and Davis, he brought suit against-the corporation for the fraud. In respect to this, the court say: “We do not think the plaintiff’s rescission of the contract, on account of the fraud, defeats their right to recover their damges from a third party, so long as they have failed to obtain satisfaction of their injury, either by a restoration or recovery of the consideration, or otherwise”. See, also, Mack v. Latta, 178 N. Y. 525. We are of the opinion that the proceedings and decree in the Wisconsin suit, for the cancellation of plaintiff’s deed to Maginnis, are not a bar to the present action.

Counsel for the plaintiff claim that their client is entitled to recover damages for the loss of her Council Bluffs property. In respect to this claim, counsel for defendant say there is no evidence that plaintiff has lost that property; also, that damages in respect to its loss are speculative and too remote. There is certainly no evidence in the record that plaintiff has lost the Council Bluffs property. It is true that evidence was offered, which, if admitted, would have tended to prove that if an encumbrance on that property, to secure payment of $3,500, should not be removed by October 12, 1906, the encumbrance might be foreclosed, but there is no evidence that it has been foreclosed. The claim for damages for the alleged loss of the Council Bluffs property is based on the assumption that if plaintiff had not been induced by the defendant’s fraud to trade for the worthless notes, and had not thus been delayed, she would have obtained the necessary money, by sale of the Wisconsin property, or otherwise, to lift the encumbrance on the Council Bluffs property, and the further assumption that, having obtained the money, she would have used it in payment of the indebtedness secured by the encumbrance. The utmost that can be said in respect to the claim is, that the 'plaintiff might, perhaps, have obtained the necessary money from another source, and that having obtained it, she might have applied it in payment of the indebtedness on the property. The damage is too uncertain and remote to be the basis for a verdict for damages. Lamb v. Stone, 11 Pick. 527; Wellington v. Small, 3 Cush. 145, 149; Bradley v. Fuller, 118 Mass. 239; I. B. & W. Ry. Co. v. Birney, 71 Ill. 391.

In the last case the court say: “Damages produced by other agencies than those causing the injury, or even by agencies remotely connected with those causing the injury, cannot be awarded as proximate or proper compensation, but only where the injury flows from the wrongful act as its natural concomitant, or as the direct result thereof. Where speculation or conjecture has to be resorted to, for the purpose of determining whether the injury results from the wrongful act or from some other cause, then the rule of law excludes the allowance of damages for such injury”.

The evidence is that the plaintiff relied solely on the sale for cash of the Merrill, Wisconsin, property, to pay the encumbrance of $3,500 and interest on the Council Bluffs property, and, to say the least, it is a matter of grave doubt, from the evidence, whether she could have thus raised the money. Plaintiff acquired her title to the Merrill property by deed from one Andrew Dunning, the sole consideration for which conveyance was the assumption by plaintiff of the payment of $3,500, secured by trust deed of the property, and payable December 7, 1906. She paid out no money for the property. Miller, witness called by plaintiff, testified: “Kuechle” (meaning plaintiff’s husband and agent) “said that the Wisconsin property was not very desirable.” “I think Kuechle said that the Merrill property was not worth a great deal.” “I think my answer on the other trial that Kuechle said the notes’ were as good as the property in Merrill was correct”. It appears from the record that the said property was sold under a decree of the Wisconsin court, in a suit for the foreclosure of the trust deed, to which plaintiff was a party defendant and appeared and answered, and that the sale was ratified and confirmed by the court December 1, 1900.

Plaintiff’s counsel also claim as damages the plaintiff’s necessary and reasonable expense of prosecuting the suit for the cancellation of her deed to Maginnis and of her agent’s trip to Merrill to show the property to Springer. The sending or going to Merrill to show the property there to Springer, and the prosecution of the suit to cancel the deed of that property to Maginnis, on discovery of the fraud, were natural consequences of the fraud, and we perceive no good reason why plaintiff should not recover her necessary and reasonable expenses in so doing. While in the view the trial court took of the cause, it was not necessary for the court to pass on the question of damages, and while we do not understand that the court did pass on that question, yet, inasmuch as counsel for the parties have discussed the question of damages, and as there must be another trial of the cause, if not settled by the parties, we have thought it expedient to make the foregoing suggestions as to damages.

The judgment will be reversed, and the cause will be remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Adams

license: Public Domain

text:
    Abraham Jacob et al., on appeal of Charles B. Calhoun, Appellant, v. Chicago & Eastern Illinois Railroad Company, Appellee.
    Gen. No. 14,068.
    1. Appeals and errors—what exception essential to review. An exception to the finding and judgment of the court in a cause tried without a jury must be preserved by bill of exceptions to entitle an appellant to a review of the cause on the evidence.
    2. Appeals and errors—when denial of non-suit not subject to review. The denial of a motion for a voluntary non-suit is not subject to review unless an exception was preserved to the ruling, and the motion, ruling and exception preserved by bill of exceptions.
    Action on the case. Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 7, 1908.
    Charles A. Butler, for appellant.
    Calhoun, Lyford & Sheean, for appellee; E. H. Seneee, of counsel.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Appellant sued appellee in case for damages alleged to have been caused by appellee’s breach of contract. The cause was tried by the court, without a jury, by agreement of the parties. The court found for appellee and entered judgment on the finding. The greater part of the argument of counsel for appellant is devoted to consideration of the evidence and to the contention that the finding of the court is contrary to the evidence.

It does not appear from the bill of exceptions that appellant excepted to the finding and judgment of the court, or either of them. Such exception must appear in the bill of exceptions, to entitle appellant to a review of the cause on the evidence. Dickinson v. Gray, 72 Ill. App. 55; Ettlinger Printing Co. v. Copelin, 76 ib. 520; Hughey v. Rokker, 84 ib. 473; Ill. Cen. R. R. Co. v. O’Keefe, 154 Ill. 508, 511; Bailey v. Smith, 168 ib. 84; Jones v. Village of Milford, 208 ib. 621.

Counsel for appellant contends that the court erred in overruling appellant’s motion for leave to enter a voluntary non-suit. To entitle this contention to consideration here, it should appear in the bill of exceptions that such motion was made, the ruling of the court on the motion; and an exception by appellant. People v. Drainage Commrs., 156 Ill. 614; C., R. I. & Pac. Ry. v. Town of Calumet, 151 ib. 512, and cases cited.

It appears from the record proper that appellant excepted to the finding of the court; also that appellant moved the court for leave to take a voluntary non-suit, which motion the court denied, etc.; but motions and rulings thereon are not part of the common law record, and can only be preserved for review by a bill of exceptions. This has been decided in very numerous cases in respect to motions for new trials; but it is the law as to all motions made in the progress of a cause. Aden v. Road District No. 3, 197 Ill. 220.

In Van Cott v. Sprague, 5 Brad. 99, the court, Mr. Justice McAllister delivering the opinion, points out of what the record proper, or common law record, consists, and shows that matters not belonging to the common law record must, if desired, be preserved by bill of exceptions.

Appellant has assigned as error the refusal of the court to hold certain propositions of law. A motion for a new trial is unnecessary when a cause is tried by the court, without a jury. Dickinson v. Gray, supra; Sands v. Kagey, 150 Ill. 109; Union Ins. Co. v. Crosby, 172 ib. 336.

Section 60 of the Practice Act, in force when this cause was heard, substitutes for a motion for a new trial, in causes tried by the court, without a jury, exceptions to the decisions of the court. Last two cases cited and Bailey v. Smith, 168 Ill. 84. It necessarily follows that the result of an omission in the bill of exceptions, in a cause tried by the court, to show exceptions to the finding and judgment, is the same as an omission in the bill of exceptions in a cause tried by jury, to show a motion for a new trial, the overruling thereof, and an exception to the overruling. In the latter case, viz.: where the trial was by a jury, the court, in E. St. Louis R. R. Co. v. Cauley, 148 111; 490, say: “A bill of exceptions must show the entering of a motion for a new trial, its being overruled, and an exception to the order overruling the same, before an appellate court can consider any question of the admission or sufficiency of evidence or error in giving or refusing instructions. The failure of the bill of exceptions to show this cannot be obviated by the recitals of the judgment”.

Gage v. Goudy, 128 Ill. 566, was tried by the court, without a jury. The bill of exceptions failed to show an exception to the finding or judgment of the court. Held, that there was no question for the court to consider.

We are of opinion that no exception to the finding or judgment of the court appearing in the bill of exceptions, and there being no contention that there is any error of form or irregularity in the common law record, there is nothing before us for review.

In Hawley v. Huth, 114 Ill. App. 29, the court, in an elaborate and very able opinion, discussed the effect of an omission in the bill of exceptions to show exceptions to the finding and judgment in a cause tried by the court, and say: “In East St. Louis Electric R. R. Co. v. Cauley, 148 Ill. 490, it was held in that case, tried by a jury, the bill of exceptions must show an exception to an order overruling a motion for a new trial, before an appellate court could consider any question of the admission of evidence, and that where the bill of exceptions does not show an exception to the order overruling a motion for a new trial, ‘whatever would be cause for a motion for a new trial stands as if not objected to’. So, in a case tried without a jury, if the defeated party does not except to the finding or the judgment, he acquiesces therein, and we think he should be held to have waived every error occurring during the trial, which he could have asserted against the finding and judgment, if he had duly excepted thereto, including rulings upon the admission or rejection of testimony. If a party has thus waived any exception he could have presented to the finding and judgment, how can he afterwards be heard to say the judgment should nevertheless be reversed because of some error in the rulings at the trial? That would be to permit him the same advantage as if he had excepted to the finding and judgment”.

The judgment will be affirmed.

Affirmed.


text:
    John E. Ludwig, Appellee, v. James A. Brady Foundry Company, Appellant.
    Gen. No. 14,072.

      Verdict—when set aside as against the evidence. It is the duty of the Appellate Court to set aside a verdict which is manifestly against the weight of the evidence regardless of the motive which may have influenced the jury in rendering it.
    Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed December 7, 1908.
    Ashcraft & Ashcraft, for appellant; E. M. Ashcraft, of counsel.
    Walter J. Miller, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The declaration in this case consists of three counts, the third of which is only necessary to be considered, and which is as follows :

“Third Count. Whereas, on the 2nd day of May, 1904, by an agreement in writing attached and marked Exhibit ‘A', and a verbal modification of this agreement, that if the plaintiff would introduce the defendant to certain persons and corporations, and the work of such persons or corporations was obtained, the defendant would pay the plaintiff the commissions indicated in agreement Exhibit ‘A’, and pursuant to said undertaking, the plaintiff began to solicit work for the defendant and to look after the work so solicited, so long as the same was to the mutual advantage of the plaintiff and defendant, and until he was requested by defendant to discontinue to look after said work, and defendant accepted said work and performed the same; and there became due plaintiff from defendant, as commissions on account of the agreement and modification thereof, for services rendered by plaintiff for the defendant, large sums of money, to-wit, $3,500, and being so indebted, the defendant, in consideration thereof, then and there promised the plaintiff to pay him the said sums of money at his request; yet the defendant, though requested, has not paid the same, nor any part thereof, to the plaintiff, but neglects and refuses to do so, to the damage of the plaintiff”, etc.

Exhibit A referred to in the count is as follows:

“Chicago, May 2, 1904.

Me. John E. Ludwig,

Dear Sir: We agree to pay you a commission of 5% to solicit work for our Foundry.

All accounts so solicited subject to our approval. We will defray all expense incurred in the delivery of the castings.

Settlements of your commissions to be made with itemized statement, not later than the 15th of each following month.

This agreement to hold good on all orders so solicited by you, whether we do the work continuously or not, so long as you look after the customers to the mutual advantage of us both. ^ Tours very truly,

Jas. A. Brady Fdry. Co.,

per G. S. Burtis, Treas.

Above accepted.

John E. Ludwig,

443 La Salle Ave.,

Ch’go, Ill.”

The defendant pleaded the general issue. The jury found for the plaintiff and assessed his damages at the sum of $1,076.10, from which the plaintiff remitted $13. The defendant moved for a new trial and in arrest of judgment, which motions the court overruled and rendered judgment for $1,063.10.

Defendant’s counsel contend that the third count does not aver compliance with the alleged modified agreement; and that even though such compliance had been averred, the evidence would not sustain the declaration; and that the verdict is contrary to the manifest weight of the evidence.

Plaintiff’s counsel, in his argument, says, in substance, that Exhibit A was put in evidence for the purpose of fixing the basis of compensation of the plaintiff, under the special contract, and that the action was not brought on Exhibit A. We concur in this view. But, in the third count, after averring the modification to have been “that if the plaintiff would introduce the defendant to certain persons and corporations, and the work of such persons or corporations was obtained, the defendant would pay the plaintiff the commissions indicated in agreement Exhibit A”, it is not averred that the plaintiff introduced the defendant to any person or corporation. The cause, however, was tried on the theory that proof of such introduction by the plaintiff is necessary to a recovery; and counsel for plaintiff substantially admits this, saying: “A special contract with regard to the work of the Morgan-Gardner Electric Co. was made between Ludwig and the James A. Brady Foundry Company, four or six days after the making of the general agreement, by which he was to get commission upon all the work done by the James A. Brady Foundry Company for the Morgan-Gardner Electric Company, upon the condition that he would introduce Mr. Meehan, superintendent of the James A. Brady Foundry Company, to the person in the Morgan-Gardner Company who signed contracts”.

A stipulation between the parties, read in evidence, contains the following: “It is hereby stipulated that the sole controversy in this cause is as to whether or not the plaintiff is entitled to receive from the defendant commission for work done by the defendant for the Morgan-Gardner Electric Co.; that the amount of work done for the Morgan-Gardner Electric Co. to the time of the institution of this action was $20,752.85”, etc.

It was incumbent on the plaintiff to prove what the contract was. He testified that Robert Burtis, defendants secretary and general manager, said to him: “If you will get the work, John Meehan will go out there any time that you want him to, and if you get the work he will pay you your regular commission”. Asked by the court to repeat the answer, he said: “He says, ‘John will go out there at any time you want; John Meehan will go out there any time you want him to, to help you with the work, and if we get this work we will pay you your regular commission’.” John Meehan was defendant’s superintendent. Plaintiff testified that the foregoing was said by Bnrtis in Meehan’s presence. On cross-examination of plaintiff, he testified that, in the first conversation he had with Mr. Bnrtis about the work of the Electric Co., Meehan being present, Burtis asked plaintiff abont introducing them to the man with the Electric Co., who signed contracts. He was then asked this question: “And which one of them was it that you say told you if you would introduce them over there to the man who signed the contracts, and they got the contract, that they would pay you your commission on it ? ” A. “ That was Mr. Burtis”. Then followed a series of questions as to whether either Mr. Burtis or Mr. Meehan said this, which the witness, by his answers, evidently sought to evade, until finally yielding to persistent cross-examination, he said that the introducing Mr. Meehan to the man who signed the contracts was his own suggestion, when he was questioned and answered thus:

“Q. Well, did either of them say that, or words to that effect, that if you would introduce them over there to the man that signed the contracts, and they got the contract, you would get the commission?

A. Not that I remember of”.

The witness admits that he did not know, personally, any one connected with the Morgan-Gardner Electric Co., and he testified that, by appointment made with Mr. Burtis, he went with Meehan to the office of the Electric Company, presented to Mr. Ryan, secretary and general manager of that company, Mr. Meehan’s card, as if it were his own, and said to Mr. Ryan that Mr. Meehan was the superintendent of the foundry. In other words,*, that he, a person utterly unknown to Mr. Ryan, assumed to be a Mr. Meehan and introduced another Meehan to Mr. Ryan.

Mr. Mighell, general superintendent and purchasing-agent of the Morgan-Gardner Electric Company, was called as a witness for plaintiff, and testified that, some days before Ludwig called at the office of the company, he had determined to buy the goods wanted from the defendant; that he had looked up different foundries and would contract with the defendant; also that he, witness, found about the Brady Foundry Co. through the superintendent of the Davis & Ludwig Co. No other witness was called by the plaintiff. Mr. Ryan testified that he first met plaintiff in his office, but didn’t remember whether Mr. Meehan was present, and can’t remember plaintiff introducing him to Mr. Meehan. He further testified that, before the contract with defendant was made, he had instructed Mr. Mighell to look up several foundries and report to him, which Mr. Mighell did, and selected defendant’s foundry. Mr. Burtis testified that nothing was ever said in his presence, by plaintiff or any one, about plaintiff going to the Electric Co. to solicit business, and that he, witness, was never present at any conversation when it was proposed or talked of, that Ludwig' would introduce witness, Meehan, or any one, to the person at the Morgan-Gfardner Electric Co.’s plant who was authorized to sign contracts, and that he, witness, never said to plaintiff, in presence of Mr. Meehan, or at any time, that, if witness or the defendant succeeded in obtaining a contract from the Electric Co., plaintiff would be entitled to a commission; also that witness never, until the commencement of this suit, heard of any appointment for Mr. Meehan to meet Mr. Ryan. This witness denies, positively, every material part testified to by the plaintiff. Mr. Meehan testified that he had no conversation with plaintiff, prior to obtaining the contract with the Electric Co., and heard none, about plaintiff introducing him to any one of the Electric Co.’s plant; that he, witness, had been at that plant from twelve to fifteen times before he was there with plaintiff, soliciting work, and had seen Mr. Mighell there. In reference to going to the Electric Co.’s plant with plaintiff, Mr. Meehan testified, in substance, that one morning, between 9 and 10 o’clock, plaintiff came to defendant’s foundry with some patterns, and asked witness if he had time to go with him to Nicely Brothers, when witness said if he would wait a little he would go, and between ten and eleven o’clock they started for Nicely Brothers’ place, and on their route they came to the Electric Co.’s plant, when witness said, “I guess I will run over here for a few minutes”, and plaintiff said,. “All right, I will go with you”, and when they started to go in there, plaintiff ran up the steps ahead of witness, and as they were going into the door, plaintiff turned and asked witness for a card, and witness held out to him a package of his cards, which plaintiff took, and rushed in ahead of him; that witness was going to see Mr. Mighell about the work, but plaintiff said, “Wait a minute”, and went into Mr. Ryan’s office, leaving witness in a little reception room. After a minute or two plaintiff motioned witness to come in, and said to Mr. Ryan, “This is Mr. Meehan, superintendent of the James A. Brady Foundry Co.”, and Mr. Ryan said that he was too busy, that they would have to excuse him, and referred them to Mr. Mighell, saying, “He looks after the buying of castings”, and when they were leaving Mr. Ryan looked at the card and remarked, “You are both Meehans”, and when they were outside, on their way to Nicely Brothers, witness said to plaintiff, “You didn’t know Ryan”, and plaintiff said, “No, I didn’t know him”, when witness said, “You had a lot of gall to go in there and give him one of my cards and then introduce me”. Witness further testified that, up to the time that plaintiff asked him to go with him to Nicely Brothers there never had been any conversation between them, or between plaintiff or any one else, in witness’ presence, about going with plaintiff to the Electric Co.; that witness had never heard of any such arrangement. We think it unnecessary to refer further to the evidence, all of which we have carefully read and considered.

We think the verdict manifestly contrary to the preponderance of the evidence. Counsel for the defendant is apparently conscious of this, in contending that even though the verdict is against the weight of the evidence, it cannot be set aside unless it is apparent that the jury were actuated by passion or prejudice. Even, if this were the law, it would not help the plaintiff, because, assuming that the jury were men of ordinary intelligence, and that they did not misconceive the evidence, which, in view of their verdict, it is difficult to believe, they must have been moved by passion, prejudice or other improper motive. But such is not the law. It is the duty of this court to set aside a verdict which is manifestly against the weight of the evidence, regardless of the motive which may have influenced the jury in rendering it. C. & A. R. R. Co. v. Heinrich, 157 Ill. 388, 394; C. & E. R. R. Co. v. Meech, 163 ib. 305, 308.

We think that defendant’s refused instruction 1 should have been given. Scanlan v. Chicago Union Trac. Co., 127 Ill. App. 406, 412, and cases cited.

The judgment will be reversed and the cause will be remanded.

Reversed and remanded.


text:
    William E. Love et al., Appellees, v. Percy W. Love et al., on appeal of Thomas B. Lynd et al., Appellants.
    Gen. No. 14,663.
    1. Appeals and errors—what not subject to review upon hearing of interlocutory order. Upon an appeal from an interlocutory order the merits of the controversy not involved in the interlocutory order are not before the Appellate Court for review.

      2. Receiverships—when appointment not erroneous. The appointment of a receiver made in the exercise of a legal discretion will not be set aside on review where no abuse of discretion appears.
    Partition. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed December 7, 1908.
    G-aetside & Hudson, for appellants.
    Julius Steen, for appellees.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

This is an appeal from an interlocutory order appointing a receiver.

The appellees, claiming to be the heirs, together with Percy W. Love, of James M. Love, who departed this life December 24,1886, leaving a will, filed a bill for the partition of certain premises described in the bill, making Percy W. Love, Thomas B. Lynd, Edward M. Lynd and others, defendants. The defendants named also claim under the will of James M. Love, deceased, which will is set out in full in the bill.

The question which claim is valid, that of the complainants or that of the defendants, depends on the construction to be given to the will. Counsel for appellants, assuming that the question as to how the will should be construed is before us on this appeal, have directed their argument mainly to the contention that the defendants above named are the parties entitled, under the will; and appellees’ counsel, while contending that no question involving a construction of the will is before us on this appeal, has, presumably from abundant caution, argued that it should be construed in favor of his clients.

The question as to how the will should be construed is before the lower court for determination by that court on the final hearing. The question is not properly before us and cannot come before us otherwise than by appeal or writ of error, after a final decree in the cause shall have been rendered by the lower court. It is not intended or contemplated by the statute authorizing appeals from interlocutory orders appointing receivers, that on such appeals questions relating to the merits of the causes in which the interlocutory orders are entered shall be considered and passed on by the reviewing court. The statute provides: “The force and effect of such order or decree, and the proceedings in the court below shall not be stayed during the pendency of such appeal.” Hurd’s Stat. 1905, p. 234.

This being the law, the lower court, notwithstanding the appeal from the interlocutory order, might proceed to a hearing of the cause and decide the question of law at issue between the parties, viz.: as to how the will should be construed. Manifestly, the same question cannot be pending for decision in this court and in. the Superior Court, in the same case and at the same time. Elgin Lumber Co. v. Langman, 23 Ill. App. 250; Smith v. Chytraus, 152 Ill. 654; Elliott on Civil Procedure, sec. 541.

The sole question before us on this appeal is, whether the lower court erred in appointing a receiver. In Railton v. The People, 83 Ill. App. 396, we said: “Counsel confuse the interlocutory control of the property, by appointment of a receiver pendente lite, with a final order determinative of the rights of the litigants. It is true that the interests of appellant could not be finally disposed of in the suit until she had been given her right to be heard in defense. But here is no final adjudication. The court merely sought, by its interlocutory order, to preserve the estate until a final determination might be had.”

In High on Injunctions, 3rd ed., p. 9, it is said: “Indeed, upon an interlocutory application for a receiver, a court of equity usually confines itself strictly to the point which it is called upon to decide, and will not go into the merits of the case at large, since the court is bound to express its opinion only to the extent necessary to show the grounds upon which it disposes of the application”. The same author says: ‘‘ A receiver is an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it”. The receiver in this case was appointed on motion of appellees. Counsel for appellants contend that the motion was granted on insufficient evidence, and urge that the amended bill is not verified, and that an affidavit read in support of the motion is not sufficient. The original bill is sworn to, and was before the court when the motion was made; but the affidavit purporting to be in verification of the bill is the same held by this court to be insufficient in Deimel v. Brown, 35 Ill. App. 303, and in a number of cases following that case. The amended bill is not sworn to. The following affidavit was read in support of the motion:

“James R. Wadsworth, being duly sworn, on his oath says that he is the agent for the complainants in the above entitled cause in this behalf; that the premises named in the amended bill of complaint, heretofore filed in the above entitled cause, are improved in part by buildings erected thereon and occupied by various tenants, who have been made defendants in this cause, and whose appearance has been entered herein, excepting as to some of said premises which are at the present time vacant.

“Affiant further says, that upon inquiry made by him of said tenants, he has been informed that the monthly rentals amount to the sum of from eighty-five to ninety dollars per month, and that the rents of such as are at the date hereof occupied, amounting to at least fifty-five dollars per month, are being paid to one Jay W. Cummings and John M. G-artside, for the use of the defendants, Thomas B. Lynd and Edwina M. Lynd, as this affiant is informed and believes.

“Affiant further says that the buildings upon said premises are all at the present time in a state of bad repair, and are in need of repairs to prevent waste and decay, and that one of said buildings, located at 1308 Seventy-first street, as he is informed, was vacated in October last because of the bad state of repairs thereon.

“Affiant further says, that the general taxes levied for the year 1906 upon all of the premises described in this cause, have been left unpaid, and said premises have been sold for non-payment of taxes; and further says not.

“(Signed) Jambs E. Wadsworth.

Subscribed and sworn to before me this 16th day of January, 1908.

(Signed) Walter G. Wissing,

(Notarial Seal.) Notary Public.”

It is impliedly conceded by the arguments for both parties in this appeal, that the rights of the principal parties depend upon the construction to be given to the will, and this must have been apparent to the courl from the will itself, which is set forth at large in the bill. It is therefpre to the interest of both parties that the property in question shall be preserved till such time as the court shall construe the will. The property having been sold for taxes, the purchaser may acquire title t'o it. At least, the sale is a cloud on the title, which cannot be removed without payment of the taxes, and to pay the taxes it may be necessary to use the rents, and therefore to preserve them. It was largely a matter resting in the discretion of the court, to determine whether or not a receiver should be appointed, and we cannot say that the court, in determining that question as it did, abused its discretion.

The order appointing a receiver will be affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Edward E. Maxwell et al., Appellees, v. Lafayette McWilliams, Appellant. Edward E. Maxwell et al., Appellees, v. Daniel M. Lord, Appellant.
    Gen. No. 14,030.
    Gen. No. 14,031.
    1. Rescission—extent of relief in equity. It is not within the province of a court of equity under the mask of a legal fiction of “rescission” to punish a fraud.
    2. Fiduciary relation—remedy where secret profit has been made. One who ostensibly acts as an associate of syndicate members, when, in fact, he is acting as a promoter, is liable to his principals for the return of any secret profit received by him.
    3. Appeals and errors—when finding of chancellor not disturbed as against the evidence. If a cause has been tried before the chancellor chiefly on oral testimony, his findings upon conflicting evidence will not be disturbed on review unless clearly against the weight of the evidence.
    4. Fraud—how may be established. Although the evidence of fraud must be clear, satisfactory and persuasive, it may, notwithstanding, be circumstantial.
    5. Equity—what relief may be granted under general prayer. Under the general prayer for relief contained in a bill in equity, relief may be granted which is consistent with the facts set up.
    6. Accounting—extent of equitable jurisdiction to award. Those forming a syndicate to purchase interests in land, or the like, thereby establish a quasi-partnership or fiduciary relation which confers upon equity jurisdiction to award an accounting against those who as the purchasing agents misapply trust funds confided to them.
    7. Accounting—against whom decree should run. Upon the award of an accounting to recover secret profits, not only those holding a fiduciary relation and handling money should be made the subject of a decree, but, likewise, those who have unlawfully shared in such profits.
    8. Accounting—what does not discharge liability. A voluntary payment made under a mistaken view of the law to one not entitled to the accounting, does not discharge the liability to account to those parties who are entitled thereto.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 7, 1908.
    Statement Tby the Court. These cases are separate appeals from the same decree of the Circuit Court. They have been consolidated for hearing on one transcript of the record, set of abstracts and briefs. They will therefore be disposed of together.
    The transcript of the record contains 1500 typewritten pages, the abstract 368 printed ones, and the various briefs and arguments in the aggregate 550 more. In this mass of matter the best method of statement of the questions involved is, we think, to give the findings and orders of the decree appealed from, and then to state the objections to the decree and the contentions involved covered by the assignment of errors by the appellants and the cross-assigmnent of errors by the appellees.
    The decree was entered July 19, 1907.
    It was after a hearing of evidence oral and documentary by the chancellor, on an amended bill filed June 28, 1906, in which Edward E. Maxwell, James H. Gilbert, Charles H. Conrad, William N. Eisendrath, Calvin M. Favorite, George Woodland, Adolph Nathan, Helen W. Hamilton and Frank T. Hamilton, Administrators of the Estate of John M. Hamilton, deceased, and Sarah M. Snitzler and John T. Snitzler, Executors of the last will and testament of John H. Snitzler, deceased, were complainants, and Lafayette McWilliams, D. W. Kimball, Daniel M. Lord and the H. G. & M. Oil Company, a corporation, were defendants, the answer and amended answer of McWilliams, Lord and Kimball thereto (the H. G. & M. Oil Company having been defaulted for want of an answer), and the replications of complainants.
    Its findings, recitals and orders are:
    1. That prior to December 1, 1904, McWilliams and Kimball became the joint owners of an option by means whereof they were entitled to purchase certain oil and gas leases of about 500 acres of lands in Madison county, Indiana, from one Joseph N. Tait, upon the payment to Tait of $50,000 and the further payment of $2,500 to one William C. Hoag for his commissions as the agent and broker of Tait in negotiating the option.
    2. That being unwilling to purchase and operate said properties for their own account, but being desirous of effecting a sale thereof at a profit, McWilliams and Kimball undertook to find other persons who should become purchasers of said property at $70,000, but failed to do so within the period of their original option.
    3. That thereupon McWilliams and Kimball secured an extension of said option at the price of $57,500, of which $55,000 was to be paid to Tait and $2,500 to Hoag, and associated with themselves Daniel M. Lord in a further attempt to sell said option at a profit.
    4. That McWilliams, Lord and Kimball, then acting in concert, during the last days of November and the first days of December, 1904, requested Edward E. Maxwell, James H. Gilbert, Charles H. Conrad, William N. Eisendrath, Calvin M. Favorite, George Woodland, Adolph Nathan, John M. Hamilton, John H. Snitzler (said Hamilton and Snitzler having since died), to join wth them, the said McWilliams, Lord and Kimball, in the purchase of said oil and gas leases, and during the course of the negotiations represented to these nine persons, Maxwell, Gilbert, Conrad, Eisendrath, Favorite, Woodland, Nathan, Hamilton and Snitzler (called hereafter in the decree “the investors”), that they, McWilliams, Lord and Kim-ball (called hereafter in the decree “the defendants”), had an option for the purchase of said property at the price of $70,000; that said $70,000 was the amount which would have to be paid to the owners of said leases, and that the investors were being offered a chance to come into a good thing at the ground floor price.
    5. That each and every one of said representations was false and fraudulent, and was known to be so by the defendants, and was knowingly made by the defendants and each of them to the investors and each of them, to induce them to purchase said property at a price higher than that at which the defendants could purchase the same under their option.
    6. That the relations between McWilliams and Lord and some or all of the investors, had for many years been friendly and intimate, and that the said investors had a right to rely on the truth of the said representations ; that said Maxwell, Gilbert, Conrad, Eisendrath, Favorite, Woodland and Nathan did rely on the truth of said representations and believed them to be true; that Snitzler and Hamilton died before the hearing of the cause, and there is no affirmative testimony that either of them did or did not believe or rely on said representations, or knew or did not know the true facts concerning the amount of said option price, other than the fact that the said representations were made in their presence and that they thereupon, with the other investors, made the payments hereinafter set forth; that therefore the court finds that said Hamilton and Snitzler did rely on and believe said representations; that after the making of said representations the investors paid to the defendants the following sums of money respectively:
    Edward E. Maxwell, $11,000.
    James H. Gilbert, 10,000.
    Charles H. Conrad, 2,000.
    William M. Eisendrath, 7,000.
    Calvin M. Favorite, 7,000.
    George Woodland, 1,000.
    Adolph Nathan, 5,000.
    John H. Snitzler, 7,000. John M. Hamilton, 14,000.
    Total, $64,000;

      that the defendants then and there agreed to contribute to said fund of $70,000, as and for their respective shares of such purchase, the following sums:
    Lafayette McWilliams,' . $1,000.
    D. W. Kimball, 1,000.
    Daniel M. Lord, 4,000.
    Total, $6,000;
    that these payments were made on December 3, 1904, and that McWilliams and Kimball paid their shares to Lord on that day.
    7. That contemporaneously with the payment of said sums of money, it was agreed between the investors and the defendants that the defendant Lord should take said money and examine said property, and that' if certain representations hereinafter .referred to, concerning the production and equipment of the property, were found by him to be true, he should exercise the said supposed option of purchase at $70,000, and that otherwise he should return the money to the investors. Whereupon Lord, acting ostensibly as a joint investor with the others, and as their agent, and concealing from the said investors all knowledge of the fact that he was interested in making such a sale, and that he and his associates would obtain a profit if the property were taken by the investors at the price of $70,000, accepted from them the moneys above referred to, aggregating the sum of $64,000, made an examination of said property, used $57,500 thereof to exercise the aforesaid secret option of himself and his co-defendants, McWilliams and Kimball, reported to the investors that he had closed the deal, caused the said property to be turned over and conveyed to the corporation hereinafter referred to, and divided the sum of $12,500, the secret profit in the transaction aforesaid, between himself and his said associates, share and share alike. That is, Lord paid $4,166.66 in cash to McWilliams, $4,166.66 in cash to Kimball, and himself retained $166.66 in cash and thereafter received from the corporation stock of the par value of $4,000 as being fully paid, without any further additional payment on his part, with like effect as though he had actually contributed $4,000 to said fund of $70,000 and had subsequently drawn the same out again on account of his share of said profit.
    8. That before or at the time of the payment of the money to Lord, it was agreed by the investors and defendants that a corporation with a capital stock of $70,000 should be formed to take and hold the title to said property, and that the investors and defendants should receive stock at par for the amount of their respective investments; that with the knowledge of each of the defendants and the active co-operation of McWilliams and Lord, a corporation was duly organized under the laws of Indiana, on December 13, 1904, with a capital stock of $70,000, named the H. G-. & M. Oil Company; that its whole capital stock was issued to the investors and defendants in amounts equal to those set out in paragraph 6 of the decree.
    9. That the defendants, by virtue of the rights vested in them jointly by their said option, and in the exercise thereof, on the 8th day of December, 1904, procured an assignment of certain of said oil and gas leases to the H. G-. & M. Oil Company, a copy of which said assignment is attached to the original bill as Exhibit A; that said defendants also assigned to said corporation another certain gas and oil lease to make good the total acreage which they had represented to said investors as the acreage of the property originally included in their said option; the title of a portion of the property covered by said option having failed and been found to be defective, said last mentioned lease being dated December 6, 1904, and running from one Shannon and wife to the said defendants as lessees, a copy being attached to the original bill as Exhibit B.
    10. That the said corporation had not then been fully organized, and that it was mutually understood by the investors and defendants that the said corporation should acquire and hold the title to said leases and

      property, and that fully paid shares of stock should be issued and delivered to each investor and defendant to represent their said respective interests.
    11. That in June, 1905, said Gilbert, Hamilton and Maxwell received information which led them to suspect that the price paid for said property had been less than $70,000; that they investigated, and in October, 1903, obtained certain information of the facts before recited in the decree, and communicated the same to the other investors, and Gilbert and Maxwell thereupon confronted the defendant Lord with the facts so discovered, whereupon Lord admitted and stated that he had participated in a secret profit as above stated, and thereupon, without the knowledge of his co-defendants, McWilliams and Kimball, paid into the treasury of said corporation the sum of $4,000, which said payment the court finds is not to be applied on account of his obligation to the complainants herein as individuals, although the decree is not in any way to prejudice or affect the right of said Lord, if any, to recover said sum of $4,000 from said corporation.
    That in consideration of the premises, the defendants, McWilliams, Lord and Kimball, are under obligation to repay to the complainants 64/70 of $12,500, being the sum of $11,428.57, together with interest thereon at the rate of five per cent, per annum from December 3, 1904, to the date of the decree, being $1,486.39, in addition, thus making a total of interest and principal of $12,904.96, and that each complainant may have execution against the said defendants for such a proportion of said last mentioned sum as his respective investment bears to $70,000, being as follows:
    Edward E. Maxwell, 11/70, $2218.04.
    James H. Gilbert, 10/70, 2016.40.
    Charles H. Conrad, 2/70, 403.28.
    William N. Eisendrath, 7/70, 1411.48.
    Calvin M. Favorite, 7/70, 1411.48.
    George Woodland, 1/70, 201.64.
    Adolph Nathan, 5/70, 1008.20.

      Helen W. Hamilton and Frank T. Hamilton, Administrators of the Estate of John M. Hamilton, deceased, 14/70, 2822.96.
    Sarah M. Snitzler and John T. Snitzler, Executors of the Last Will and Testament of John H. Snitzler, deceased, 7/70, 1411.48.
    $12904.96.
    12. That on the trial of the cause complainants offered evidence tending to prove that said defendants also knowingly and willfully represented and stated to the investors as an inducement to the purchase, that the property was producing and had for a period of six months prior to December 3, 1904, been producing an average daily output of one hundred barrels of oil, and was adequately equipped with first-class machinery and appliances for handling such product, and also offered evidence tending to show that said representations were false within the knowledge of the defendants, and that the complainants were induced thereby to make the investments aforesaid, and relied upon the truth thereof, and had no reason to suspect their falsity; that the defendants on their part denied the making of such representations and introduced evidence tending to disprove such allegations; that the complainants also introduced evidence tending to show that, relying on the matters last above referred to, they gave due and prompt notice of their election to rescind the said contract and tendered back to the said defendants all that they had received through said purchase; and also introduced evidence tending to show that said notice of rescission and tender was in due time and sufficient.
    That the defendants offered evidence tending to show the contrary; that the court, for reasons hereinafter stated, declines to make any finding in regard to the matters in this paragraph before referred to; that the court holds that the said defendants did not occupy the relation of vendors to the complainants, but only the relation of agents, and for that reason the remedy of rescission cannot be applied, and that the sole remedy’ of the complainants in a court of equity is the recovery of the secret profits which the said defendants received and improperly retained while acting in the relation aforesaid; that therefore the prayer of the complainants’ bill for a rescission of the contract and a return of the whole amount of the purchase money, aggregating $64,000, is denied; that this decree, however, is without prejudice to the right of the complainants tó institute proceedings at law to recover damages for the alleged fraudulent representations regarding the product, character and condition of said property; nor is the decree to be taken as a finding for or against either party upon the question of such last mentioned claim for damages in an action at law based upon such alleged false representations.
    13. That the equities are in favor of the complainants.
    The court therefore decrees: That in addition to the payment of the several sums of money found due from the defendants, to the complainants respectively in paragraph 11 of the decree, with interest as provided, the complainants also recover of said defendants the costs of this proceeding to be taxed; that the stock in the said corporation issued to the defendants and each of them be deemed and taken to be fully paid; and that the defendants as between themselves are liable for equal shares of the amounts so recovered by the complainants, and that they may have contribution therefor from one another.
    The defendants ánd each of them appealed from this decree as a whole, while the complainants jointly and severally prayed an appeal, which was allowed them (but which it does not appear was perfected) from so much of said finding and decree as denies the prayer of the complainants for a rescission of the contract of purchase and sale and the recovery of the said $64,000 purchase money.

      But in this appeal of the defendants McWilliams and Lord, the complainants have assigned cross-errors covering the points mentioned in their prayer for a cross-appeal, their assignment of cross-error being: “That the court erred in denying the prayer of the bill of complaint for a rescission of the contract and a return of the whole amount of the purchase money, aggregating $64,000, together with interest thereon’’.
    The assignment of errors by the defendants, op the other hand, complains of the relief which was granted to the complainants, alleging any decree against the defendants to be contrary to the law and the evidence. It also particularly attacks the relief granted to the administrators of Hamilton and the executors of the will of Snitzler.
    The findings of fact of the decree are also questioned generally.
    Specifically the findings are objected to:
    1. That the defendants or either of them requested Conrad, Woodland, Hamilton and Snitzler to join with them in the purchase involved.
    2. That the defendants represented to any of the investors that the defendants had an option for the purchase of the property involved for $70,000, or that the said sum of $70,000 was the amount which would have to be paid to the owners of said leases, or that the investors were being offered a chance to come into a good thing at the “ground floor” price.
    3. That the complainants, other than the representatives of Hamilton and Snitzler, relied upon the truth of any such representations.
    4. That said representations were made in the presence of said Hamilton and Snitzler, or either of them, and that Hamilton and Snitzler relied on and believed said representations.
    5. That it was agreed between investors and defendants that defendant Lord should take the money contributed by the investors and defendants and examine said property, and if certain representations in said decree referred to, concerning the production and equipment of the property, were found by him to be true, he should exercise said supposed option of purchase at $70,000, and otherwise return the money to the complainants.
    6. That Lord, while effecting the purchase, concealed from the investors all knowledge of the fact that he was interested in making such sale, and that he and his associates would obtain a profit if the property were taken by the investors at the price of $70,000, as aforesaid.
    7. That in June, 1905, Gilbert, Hamilton and Maxwell received information which led them to suspect that the price paid for the property had been less than $70,000, and that they thereupon investigated, and in October, 1905, obtained certain knowledge of certain facts set forth in said decree.
    8. That the complainants offered evidence tending to prove the representations set forth in the decree, concerning production and equipment of the property, the falsity thereof, the reliance of complainants on the representations, the due and prompt notice, when they discovered the falsity of said representations, of their election to rescind said contract, and the tender to the defendants of all they, the complainants, received through said purchase.
    The specific findings of law objected to are those which hold the defendants, McWilliams, Lord and Kimball, under obligation to pay $12,904.06 to the complainants, according to their respective investments, and that which holds that the payment of $4,000 to said company, which was made by the defendant Lord to the corporation in' October, 1905, should not be applied on account of his obligation to the complainants as individuals.
    Holt, Wheeler & Sidley, for appellants.
    Tolman, Redfield & Sexton, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

It is manifest that the cross-error assigned in this appeal may conveniently he disposed of first, for if, as the learned chancellor in the Circuit Court held in the 12th paragraph of the decree, the prayer of the bill for a decree of “rescission”, which should vest in the three defendants the stock in the corporation which holds the leases and interests in lands which were the subject of the negotiations and business arrangements between them and the complainants, and give to complainants a decree against the defendants for all the money the complainants put into the business, with interest, is inadmissible, and the remedy prayed for impossible and inapplicable, the only relief possible on this bill, if its allegations are fully sustained, being the recovery by the complainants of the secret profits which the defendants are alleged to have received and retained in the course of the transaction, then we may properly, as did the chancellor, decline to decide between the sharply conflicting testimony as to the representations made by the defendants to the complainants prior to December 3, 1904, concerning the average daily production of the oil wells in question, or the machinery and appliances with which they were equipped.

On the other hand, should we think that his decision on the possible scope of the.relief proper to be granted, if any, is incorrect, the question of these representations would be of very great and probably controlling importance.

On the findings on the issues raised between complainants and defendants on these representations might well depend the question whether the present decree should stand as a sufficient and adequate remedy for the alleged misapplication of funds entrusted by the complainants to the defendants because of the misrepresentations of the latter as to price and equality of standing, or a more drastic and far reaching judgment should, without reference to any possible hardships to defendants, replace the complainants in the situation in which they were before the purchase of the oil leases by the syndicate which afterward developed into the H. G. & M. Oil Company.

Counsel for the complainants’ argument on the cross-errors is made chiefly, if not altogether, on the theory that the defendants in fact and certainly in the view of equity, sold to complainants certain interests in lands, which the defendants had exercised an option previously held by them, to purchase; that this sale was effected through various fraudulent misrepresentations, and may and should be set aside, and the defendants and complainants put in as nearly as possible the position they occupied before the sale, which would leave, according to the theory of complainants, the defendants the owners of all the stock of the H. G. & M. Oil Company, and the complainants the possessors of the money they parted with in the venture which they now regret. It is true that the counsel for complainants say that the establishment of this relation of vendors and vendees, which they insist existed between defendants and complainants, is not necessary to their right to a “rescission”, but we are not convinced by their argument. If this relation did not exist, then the “rescission” in question—on the assumption that the misrepresentations which would justify it have been proven—would be, as the chancellor in his opinion said, “to compel the defendants to stand in the shoes of the syndicate because of their wrong doing”. It was not presumably because “of tender consideration for the consequences which would be visited on the defendants”, as complainants’ counsel suggests, that the chancellor found that this would be an improper thing for him to do, on the assumption that he should find for the complainants on all the controverted issues of fact, but because he thought— as we do also—that a court of chancery has no right,' under the mask of a legal fiction of rescission, to punish fraud. If “compensation has no place in the law of rescission” (Smith v. Brittenham, 109 Ill. 540), certainly punishment cannot have. Undoubtedly transactions other than sales, being vitiated by fraud, may be cancelled or set aside or held for naught, but “rescission” of a contract of sale has a defined technical meaning, and we are of the opinion that it cannot be decreed in the case at bar unless it is held that the theory of the complainants is correct that for practical and equitable purposes the defendants were at one time the owners of the oil leases which are now the property of the H. G. & M. Oil Company.

But we are no more able so to find than was the chancellor. This is not the theory of the amended bill on which the decree was rendered, nor is it the fact shown by the evidence. The allegations of the bill are that the defendants requested the complainants “to join with the defendants in the consummation of an option” and “in the formation of a corporation which should receive assignments of the leases”, and that after and in consequence of certain representations the complainants paid to the defendants (or to Lord as their representative) certain sums of money, and that Lord took the money and procured from the owner of the leases an assignment to the corporation which had been, in accordance with their suggestions, organized.

The evidence presented by the complainants bears out the allegations, and it is on this different theory that the complainants ’ counsel rests their argument in defense against appellants ’ attacks of the decree which was entered.

In the contest over the errors assigned by the defendants, the position of the defendants is that while not vendors of the oil leases or interests in the lands to the complainants or to the corporation, they were vendors, dealing at arm’s length and on lawful principles with the complainants, of an option to buy these oil leases from Tait; that as owners of that option they sold it at a legitimate profit of $12,500 to the syndicate composed of the complainants and themselves, which afterwards developed into the H. G. & M. Oil Company. The complainants’ position, however, on these assigned errors is (as we cannot but view it, despite the disclaimers of their final reply brief) that the chancellor correctly decided that the defendants were neither “vendors” of oil leases or lands to the complainants, nor “vendors” of an option to purchase oil leases or lands to them, hut persons who as “promoters” induced the complainants, in conjunction with themselves, to exercise the option which they (the defendants) held, and having, by false representations, while in a fiduciary relation of agency, obtained from these complainants a larger amount of money than was necessary to consummate the option, divided the excess among themselves in violation of their duty and of the trust reposed in them.

If the evidence hears out this latter position, the complainants are entitled to relief—not the relief of rescission or cancellation of a contract or of a sale, hut the recovery of misused and misappropriated trust funds. This is the relief the chancellor thought the complainants entitled to and the relief which he gave them, preserving expressly to them the right to pursue at law (since the purchase which they made—involving an innocent vendor as it did—could not be rescinded or set aside) the agents or promoters charged with deceiving them as- to the character of the property bought, as well as to its price, for a recovery of any further damage the purchase may have caused them.

We think that even on the assumption that everything in the way of false representation of production and equipment which the complainants charge was proved by the evidence to the satisfaction of the chancellor and of ourselves, neither he nor we could, under the law and evidence in this case, do more, and therefore we shall dismiss from consideration in this opinion the conflicting and varying testimony concerning these representations and the elaborate, ingenious and very extended arguments in which the respective views of counsel are presented regarding them.

There is, however, no such assumption of our belief in the charges of misrepresentation of production and equipment to be made. Like the chancellor below,, and for the same reasons, we decline to make any finding in regard thereto. Nor do we wish to discuss the testimony regarding them. It would be useless for the present purposes and injudicious if there should be a suit at law growing out of them.

The disposition of the cross-error assigned, however, leaves us to pass on the objections made in the defendants’ assignment of error to the findings of fact and law in the decree.

The findings of fact have been most elaborately and exhaustively discussed by counsel, the testimony having been analyzed by them from every point of view. We have as diligently and thoroughly examined it all as though it had been primarily presented before us, as it was our duty in an equity appeal like this to do.

But it is to be remembered, nevertheless, that the evidence was, as is conceded, sharply conflicting, that the cause was tried before the chancellor on oral testimony chiefly, and that therefore on questions depending on conflicting evidence and the credibility of wit-' nesses, the finding of the chancellor should be upheld by us unless it appears to us clearly against the weight of the evidence.

Judge Bailey said in Metcalfe v. Bradshaw, 145 Ill. 133: “So far as the testimony of these witnesses is at variance, all we need say is, that the court saw them and heard them testify and from all the evidence found the equities of the case to be with the defendant. That finding, so far as we can see, is entitled to the credit which is ordinarily given to the finding of. a court of chancery, where the evidence is given orally in open court, and on appeal it must be accepted as conclusive, unless it clearly appears to be against the weight of the evidence”.

And Judge Magruder said in Blomstrom v. Dux, 175 Ill. 435, citing several prior cases to sustain his position: “The chancellor heard the testimony of the witnesses, observed their capacity and manner of testifying and could judge of the credibility of the witnesses and the weight of their evidence better than an appellate court, which sees only the cold record. Under such circumstances, the finding of fact made by the chancellor will not be disturbed unless it is manifestly against the weight of the evidence”.

We are not unmindful of the rule invoked earnestly by the counsel for defendants, that fraud and fraudulent conduct should not be presumed nor lightly inferred, but made clear by the evidence. But in reviewing the decision and finding of a chancellor who has found the evidence sufficiently clear and unambiguous to justify his decree, we are still bound by the principle above stated, and to justify our interference it must be manifest to us from the evidence that it could not have been properly held that the ground for relief was clearly proven.

We must remember too that, as the Supreme Court of the United States has said in a case relied on by the defendants, that although the evidence must be clear, satisfactory and persuasive to prove fraud, it may be circumstantial. Lalone v. United States, 164 U. S. 257.

We are unable to say that it is manifest to us from the evidence before us in this case that the contentions of the complainants, or any one or more of them, as to the representations of the price that would have to be paid by the defendants for the oil interests in question, in buying them for the syndicate, were not sustained.

On the principle that the chancellor was, from his position, the best judge of credibility in case of direct contradiction, it cannot be said that the evidence lacked sufficient clearness in this regard. Without the denials of the defendants—which the chancellor, in view of all the evidence, weighed and rejected—-there could certainly not he a doubt that the evidence that the defendants said to the complainants, or to most of them, that they had an option for $70,000, was neither ‘‘ vague ’’ nor ‘‘ ambiguous ’’.

But still more clearly, if that were possible, does it appear to us that if the credibility of contradictory witnesses is to he left to the chancellor, nothing can be urged against the clearness and definiteness with which the evidence establishes the fact that the defendants represented that “the investors were being offered a chance to come into a good thing at the ground floor price”. (Fourth paragraph of the Decree.)

This latter proposition is the core of the whole matter. It applies as well to the complainant Nathan as to the others, who swore that they never heard of the “small commission” that Nathan says McWilliams told him he expected to get. It applies to Conrad and Woodland, to whom the representations of McWilliams were repeated by Maxwell. It applies to Hamilton and Schnitzler, whose actions were consistent only, as it seems to us, with the belief that it also seems to us plain the other investors had, that they were going in practically “on the level”, and that this meant in proportionate parts of a purchase price of $70,000. To go over the testimony in detail, to discuss and analyze it from our point of view, as it is discussed and analyzed in the arguments of counsel from theirs, would, as we have had occasion to say in similar cases, undoubtedly he unnecessary for one party and unconvincing to the other. It would therefore serve no useful purpose. But taken as a whole, particularly when leaving direct questions of conflicting credibility to the chancellor, the evidence seems to us, as clearly as it did to him, to establish the proposition that the “investors” all believed, and by the words and actions of the defendants were led to believe, and from them had a right to believe, that they were “in on the ground floor” with the defendants, that they were partnership or syndicate associates “in a good thing”, in which they were all interested in the same manner, and without profit to any which the others did not share. If Nathan’s knowledge or notification that McWilliams was expecting “a small commission”, “an ordinary brokerage”, as he calls it, was an exception to this, nevertheless the additional profit which Nathan thought or was given to understand that McWilliams was expecting, was a very different “profit” from that taken by McWilliams and the other defendants and now claimed by them to be the legitimate result of the sale of the option to the syndicate as “arm’s length” vendees at an advance of more than twenty per cent.

Not only the testimony concerning what was said, but the evidence of what was actually done and the manner in which it was done, the actions of the various parties at, before and after the payment of the money all seem to us consistent with the theory that the investors thought, that the defendants knew they thought, and allowed them to think, contrary to the fact, and indeed induced them, by their speech and actions (whatever the exact words used may have been), to think, that the syndicate were all proportionate partners, without any special or peculiar advantages to the defendants in their purchase.

It is, in connection with the other evidence, an entirely fair inference, from the selection of Mr. Lord to make the examination of the property to ascertain or verify its productivity and equipment, that those present at the meeting of December 3rd, except McWilliams and Kimball, had no knowledge or suspicion that Lord was to be a special beneficiary to the extent of $4,000 and more if the sale went through, but was to get none of this profit if the property was rejected. It is also a fair inference that Lord, when accepting the duty confided to him, must have been fully aware that it would not have been so devolved on him had the actual facts been known. Business men do not act that way. It is the oldest of maxims that no man is a proper judge in his own case, on the determination of which he is to reap or lose a profit. Had Mr. Lord then intended or wished that the syndicate should be fully and fairly advised of the matters on which they were acting, he would have declined the appointment, told them that they had unwittingly selected the wrong man, exposed then the profit that he and his associates were expecting to make, and abided the result. Such would have been the natural action even of persons dealing at arm’s length, when the other party plainly showed that he was laboring under a misapprehension.

If we accept the findings of the chancellor as to the facts, it only becomes necessary to determine how the law should be applied to them. The chancellor did it in the most obvious manner to secure the natural and proper relief for the complainants, by making a money decree against the defendants in favor of each complainant for the portion of the additional cost to him of his holding which resulted from the illegitimate secret profit, providing for contribution among the defendants so. that each should be obliged to refund what he actually secured of this profit, and leaving to the complainants, for any other claims for damages for misrepresentations and deceit of which they may be advised, their action at law. We think this method equitable and logical and in accordance with correct principles of chancery jurisdiction.

The first objection to it made by the defendants was that,, assuming the facts to be correctly found by the court, “rescission, which was the only relief sought by the bill, having been denied on the facts, the court acquired no jurisdiction of the case on any equitable ground, and should have remitted the parties to the law for the relief by way of repayment of profits which was not prayed in the bill, was not incidental to the real relief sought, and for which an action at law afforded a full' and adequate remedy”.

We understand this position to be definitely abandoned by the counsel for appellants in their later argument, in which they say: “In order that this court may not be misled, as we have been, into thinking that this bill is one for rescission, by reason of its prayer for that relief, and for that specific relief only, we point out * * * that a careful examination of the bill fails to disclose a single allegation of fact showing a sale of oil properties or of stock by defendants to complainants. * * * The examination of the amended bill, apart from its specific prayer, convinces us that in its allegations of fact it proceeded upon a theory of joint purchase in line with the chancellor’s decree, and that the relief actually granted was covered by the prayer for general relief upon the facts, though wholly inconsistent with that specifically asked and therefore in no way incidental to' it. We do not therefore further urge a dismissal of the bill upon the mere question of pleading, that the decree entered was not justified by the allegations of the bill”.

If this last sentence is not, however, to be construed as wholly abandoning the position previously taken and hereinbefore quoted, we have no hesitation in saying that we think the characterization of the bill in the later excerpt from defendants’ argument is accurate, and that for the reasons therein set forth the objection made that the relief granted was neither specifically prayed, nor within the frame of the bill, fails of all force. It was not specifically prayed, because the prayer did not fit the allegations of the bill. It was properly granted under the prayer for general relief, because the facts set up in the bill plainly pointed to it, and showed it both to be the proper measure of relief and the only relief possible in this proceeding.

The learned chancellor expressed in his opinion some doubt whether equity was the proper forum for the recovery which he granted, but we do not share it. While it is true that under the law of Illinois a mere bailment will not raise a trust cognizable in equity, we think it is recognized by the decisions in Illinois, as elsewhere, that syndicate or association subscriptions to purchase land or interests in land, or perhaps any other purchasable commodity, establish, if not a partnership, at least such fiduciary relations between the associates as impose a trust character on funds confided by the others to the purchasing agents, and entitle them to ask in equity an accounting and the restoration of money improperly diverted from its intended purpose. McDowell v. Joice, 149 Ill. 124; Bunn v. Schnellbacher, 163 Ill. 328; Salsbury v. Ware, 183 Ill. 505.

Nor do wé think the further argument forceful, that the decree in any case should be restricted to Lord, who was alone the agent in the disbursement of the money and who alone therefore improperly received and improperly diverted the money of the associates.

It would be a halting jurisprudence which did not give against the two other associates who were in the secret with Lord, who were cognizant of his plan and took an equal portion of the profit, the like remedy given against him, simply because he was given the physical control of the funds. If on no other ground, the trust character of the funds in Lord’s hands, given to him for one purpose and partially diverted by him to another, authorizes a court of equity to follow the diverted moneys into the hands of persons taking it with notice that, not being required for the purchase of the oil leases, it belonged to, and should have been returned to, the investors.

On the other hand we do not regard as any better taken the point made in favor of Lord, that as he has paid $4,000 into the treasury of the H. Gr. & M. Oil Co., under the belief that he was thereby doing all and more than all that could be properly asked of him, he should not be decreed to pay a similar sum to the complainants, especially as a part of it is to be paid to complainants who acquiesced in and, as it is claimed, approved and encouraged, the payment to the corporation.

The question is not one of Mr. Lord’s belief or intentions when paying the money in question. If he paid it into the treasury of the corporation under a mistaken view of his legal obligations, or without such a mistake, purely as a gratification to his sense of business honor, or with the hope and belief that it would remove irritation and resentment, well or ill-founded, against him in the minds of those with whom he desired to live in friendship, he must take the consequences of his voluntary act, modified only by the right, expressly reserved to him by the decree, to test whatever right he may have at. law or equity to recover from the corporation the sum paid to it.

The corporation is a distinct entity. It was organized after the transactions which are the subject of this suit, although it was then in prospect. But it was the complainants who were primarily and directly injured by the unwarrantable conduct of the defendants, not the corporation. The right of action here enforced rested with the complainants individually, and not with the corporation. Payment to the corporation did not and could not release it.

Nor, in our opinion, is there any estoppel shown in the evidence against Maxwell’s or Gilbert’s recovery from Lord as from McWilliams and Kimball their portion of the diverted funds. They did not object to Lord’s payment to the corporation; they indeed reservedly commended it. But they did not propose it, urge it, or recur to it after the interview in which Lord • stated his intention. They expressly demanded other and much farther-reaching action of a very different sort—action the right to which in this cause has been refused them. We do not think they can be held to have estopped themselves from securing the relief which has been granted them, by not constituíing themselves advisers and counsellors of Lord to caution him against a contemplated voluntary action which they did not regard as satisfying his obligation to them.

As we have before indicated, the decree of the Circuit Court commends itself to us as the logical and proper one on this record, and it is accordingly affirmed.

Affirmed.