author: Me. Presiding Justice Adams

text:
    Rel W. Randall, Appellee, v. Albert A. Newman, Appellant.
    Gen. No. 14,526.

      Verdicts—when not disturbed. A verdict will not he set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed June 8, 1909.
    Dent & Jackson, for appellant.
    Bulkley, Gray & More, for appellee.
   Me. Presiding Justice Adams

delivered the opinion of the court.

This is a suit by Bel W. Randall, plaintiff below, against Albert A. Newman, defendant below, on a promissory note made by the defendant, payable to the order of W. H. Burn, of date August 15, 1906, for the sum of $1,250, due 90 days after date, with interest at 5 per cent per annum. The note was endorsed by the payee, hut it was admitted by plaintiff’s counsel, on the trial, that the plaintiff stands in no better pósition than would the payee if he were the plaintiff, so that W. H. Burn is to be regarded as plaintiff, for the purpose of decision.

The case was tried by the court, without a jury, and the court found the issues for the plaintiff and assessed his damages at the sum of $1,332.27, and rendered judgment on the finding.

The note in question was given for mining stock of the Arsenical Ore Reduction Co., the mine of that company being in Canada. The defendant first purchased 50 shares of the stock, and gave his note for $2,500 for the shares. Subsequently, by agreement between him and Burn, the purchase was changed from 50 to 25 shares, defendant’s $2,500 note returned to him, and the note in question for $1,250 given. It is contended by defendant’s counsel that the giving of the note in question was induced by false and fraudulent representations made by Burn, which deceived the defendant. Only two witnesses, the defendant and Burn, testified in regard to the statements made by Burn, in respect to the mine, and their testimony is contradictory. Defendant testified, in substance, that Burn told him that he had a good thing in a mine in Canada, which produced a large quantity of arsenic and gold —an arsenical production; and that he was selling a good deal of it in New York city; that he had 500 shares for which he paid $50 per share, which he would not sell at any price, and which he intended to keep as a nest egg for his children; that 'the regular price was $100, and none of it could be had for less. He said the name of the company was the Arsenical Ore Reduction Co. Defendant said to him, “If that is as good as yon say, I would not mind having some stock of that kind,” and Burn said he did not believe he could get it for less than $100, if he could at all. He said the mine was in splendid condition, was paying, and that they were making money; that they had a railroad and were putting in machinery to add to the output, and that it was going to be an immense thing. The conversation, in which defendant says the foregoing statements were made, occurred on a railroad train bound for New York city. It does not appear from the evidence that Burn, in that conversation, offered to sell any stock to defendant.

Defendant further testified that the next morning Burn came to him and said he remembered the president, or some one, told him some treasury stock was to be sold for development purposes, and he would see Mr. Beckwith, the president of the company, the next day, and might be able to get him some stock at the price he, Burn, paid, and defendant told him all right, to let him know about it, and that he, defendant, being on his way to Europe, thought no more about it. June 12th, Burn came aboard the boat on which defendant was, and said to him that he had seen Mr. Beckwith and he said that he, Burn, could get that stock for defendant, and defendant said, “Let it rest until I come back,” which was all that was said about the stock at that time.

Burn testified, in substance, as follows as to what occurred in the conversation between him and defendant, before the latter left New York city for Europe: Defendant asked him if there was any stock for sale, and he told him he did not lmow of any; that so far as he knew the company was not offering any, but that he would see some parties in New York, and if he found he was able to get any he would let defendant know. He did not tell defendant that he had 500 shares, or how much he had, nor did he tell him that he paid $50 a share for his stock, nor that the mine was a paying mine, nor that he would see Mr. Beck-with and ascertain if any treasury stock could be obtained; that nothing was said about treasury stock at any time; nor did he tell defendant that the stock was worth $100 per share or was selling or had been sold at that price. On cross-examination Burn testified that he did not tell defendant whether the mine was on a commercial basis, that he told him it was in a development state. Defendant testified that after his return to Chicago, and between August 10 and 15, 1906, Burn called on him and said he had obligated himself to take the stock, and defendant said he did not see why; that he had not given him any regular order to buy, when Burn said he would just as lief have defendant’s note, which he could use as money, and defendant said if he, Burn, had obligated himself, he would take 50 shares if everything, including the mine, was as he had told him on the train. The trade was then made for 50 shares. When the certificate for the shares was delivered to defendant he says that he said to Burn, “I thought you were going to give me treasury stock in the company,” and Burn said, “This is the same as treasury stock. I am going to get it from Beckwith. I will give you some of mine for the present to take its place.” Defendant testified that, about August 20th, he wrote to Mr. Beckwith, president of the company, Mr. Thatcher, secretary of the company, and Mr. Loomis, a friend of his in New York, inquiring about the mine, and asking Loomis to find out from the officers about it, and received the following letters:

“New York City, Sept. 8/06.
Mr. A. A. Newman,
Masonic Temple Building,
Chicago, 111.
Dear Mr. Newman: I have called upon Mr. Luff of the Arsenical Ore Reduction Co., who advises me that the operation of the Company is at a standstill, and that it is very doubtful whether their stock is worth anything or not, and that they are having their own troubles with the securing of electrical power with which to operate their plant and he wanted me to meet some man in charge of the Bradstreet Agency and who is president of their company with the idea of seeing if I could not help them out. It looks to me very much as if this proposition did not amount to anything. He claimed that they sent a man to Europe to see if he could not find a way of disposing of the crude ore as they mine it, and this man returned and reported there was no way of utilizing the ore abroad.
I am looking forward to seeing yon again with a great deal of pleasure and trust you will advise me before you come on.
Very truly yours,
Bruce E. Loomis.” “No. 320 Broadway, New York, Aug. 22, 1906.
A. A. Newman,
710 Masonic Temple, Chicago.
Dear Sir: Acknowledging receipt of your esteemed favor 20th regarding the value of the Arsenical Ore Reduction Co. stock, would say that it is rather difficult for me to answer this question. The stock is not listed, and any transactions are of a personal character and may or may not reflect the value of the stock. The Company, as you probably are aware, has not as yet transacted any regular business, but is rather in a stage of development.
Regretting my inability to give you more satisfactory information, I beg to remain,
Respectfully yours,
The Arsenical Ore Reduction Company,
W. E. Thatcher, Secretary. ’ ’ “346 Broadway, New York City, September 10th, 1906.
Mr. Charles E. Renshaw,
Care Newman Clock Company,
710 Masonic Temple, Chicago, Illinois.
Dear Mr. Renshaw: I am in receipt of your favor —which came during my absence from the city—inquiring in behalf of Mr. A. A. Newman with regard to the affairs of the Arsenical Ore Reduction Company. I also find a letter awaiting me from Mr. Newman bearing date August 20th, on the same subject. I am informed by our Secretary, Mr. Thatcher, that he also received a letter of like purport and date from Mr. Newman, to which he made reply on the 22nd ultimo, covering the facts as to the present status of the Company, the value of its stock, etc. I am unable at this time to add anything to what Mr. Thatcher has stated. The company is not operating, and I cannot say definitely when it will be, as we shall require some additional capital before we can undertake the proposed development of our Canadian property.
Mr. Thatcher unites with me in kind personal regards and best wishes. I remain,
Yours very truly,
Charles L. Beckwith.”

Benshaw lyrote to Mr. Beckwith by defendant’s request. After receiving these letters the defendant, about September 26, 1906, saw Burn, and asked him to take the stock back, and offered to pay him $500 to do so. Burn refused, but offered to take back twenty-five shares, give up the $2,500 note, and take defendant’s note for the twenty-five shares. Defendant testified that, when the proposition was made, he said to Burn, “Of course it is understood that this is treasury stock and the money will be used for development purposes,” to which Burn replied, “Yes, that is so understood.” It has already been stated that Burn testified frequently and emphatically that nothing was said about treasury stock. It is noticeable that, when defendant agreed to take the fifty shares, he said nothing about treasury stock. He testified, “I said that if he had obligated himself, I would take fifty shares, if everything was as he said, and the mine was in the condition he had told me. on the train. He said it was, and they would make a lot of money, and finally I consented.” Not a word about treasury stock. This testimony of the defendant is, to say the least, remarkable. He had just learned from the president and secretary of the company that the company had not transacted any regular business, but was rather in a stage of development, and from his friend, Mr. Loomis, that operation was at a standstill, and that it was doubtful whether the stock was worth anything, and yet he claims to have relied on what he says Burn told him on the train. When defendant received the certificate for fifty shares, his own testimony shows that he knew it was not treasury stock. He testified that he said, “I thought you were going to give me treasury stock in the company.” It was intended that the fifty shares should be sent to New York by Mr. Carlson of the State Bank of Chicago, to be split into two certificates of twenty-five shares each, and defendant executed the following document:

“Received from W. H. Burn, order on Arsenical Ore Reduction Co., Newark, New Jersey, for fifty shares of stock, said order being duly signed by its president, Chas. L. Beckwith.
I agree to have this order forwarded to the president of the Company, Mr. Beckwith, and to have issued in its place an order for twenty-five shares to W. H. Burn. The remaining twenty-five shares to be transferred to myself (A. A. Newman), which I have bought and paid for, and which Mr. Burn has duly assigned to me.
Chicago, Sept. 27th, 1906. A. A. Newman.”

Mr. Carlson, witness for defendant, after testifying to the agreement for the twenty-five shares, was. questioned and answered as follows:

“Q. You understood, at that time, that was a settlement of the former deal, did you?
A. Yes, sir, a compromise.”

Mr. Nanz, defendant’s witness, testified, on cross-examination, that Burn said, if defendant felt so badly about it, they might come to some arrangement, and that he, Burn, would take twenty-five of the shares, defendant’s note to be changed to a note for $1,250, and that he would return defendant’s note and they would settle the matter up, and defendant said, “I accept that, and if you will bring the note tomorrow we will settle.”

Burn testified that defendant said to him, “Now, Mr. Burn, I have a proposition to make to you, and it is this, that you let me take twenty-five shares of that stock, which I will pay you for, and return me my $2,500 note, and I will feel that you have done a square thing, and we will be good friends, and I hope we will find the stock is a good investment.” Mr. Burn further testified that, when they went to the State Bank, defendant said to Mr. Carlson that “he had effected a settlement with Mr. Burn and was going to take twenty-five shares instead of fifty.”

We think the evidence fully warranted the court in finding that the exchange of defendant’s fifty shares of stock and his note for $2,500 for twenty-five shares and his note for $1,250, was a settlement between him and Burn of all differences between them. At least such finding is not manifestly against the weight of the evidence.

An attempt was made by the defendant to rescind the contract after the suit was commenced, but in the view we take of the evidence, there was no right to rescind. Neither do we think there was anything to recoup, as contended by defendant’s counsel.

There is evidence in the record tending strongly to prove that the mine is of great value and that the investment will prove a profitable one.

Defendant’s counsel submitted to the court sixteen propositions to be held as law in the case, eight of which the court held and refused the remainder. Counsel contend that the court erred in refusing certain of the proposition's. We think the propositions marked “held” state the law applicable to the evidence as fully as the defendant is entitled to, and that tkereis no. reversible error in the refusal of any of the other propositions.

The judgment will be affirmed. .

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Adams

license: Public Domain

text:
    Emma H. Dacy, Administratrix, et al., Appellants, v. George G. Goll et al., Appellees.
    Gen. No. 14,534.
    1. Appeals and errors—when finding of court not disturbed. A finding of fact by the court will not be set aside on review as against the evidence unless clearly and manifestly so.
    2. Witnesses—how and when objection to competency must be made. An objection to the competency of a witness must be specific and an objection to a question propounded to him is not sufficient; an objection not being made in the trial court comes too late on review.
    Proceeding in court of probate. Appeal from the Probate Court of Cook county; the Hon. Charles S. Cutting, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed June 8, 1909.
    John Leo Fay, for appellants; Francis W. Walker and Albert G. Welch, of counsel.
    Durand & Cunningham and Barr, Barr & Barr, for appellees.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

This is an appeal from a decree of the Probate Court dismissing a petition for leave to sell real property to pay a claim against„ the estate. Emma H. Dacy, administratrix of the estate, which was of Emma A. Goll, deceased, filed the petition, making George G. Goll, Berta M. Goll, I. Blanche Cushing, Clayton Cunningham, as trustee and individually, Clarence N. Durand and others, defendants. The petition avers, among other things, that Emma A. Goll died intestate September 5, 1900, and September 6, 1900, Bruno H. Goll was appointed administrator of her estate; that said Bruno H. Goll died September 27, 1905, and petitioner was appointed administratrix de bonis non of said estate. The petition then avers facts showing a deficiency of $4,109.79 to pay claims allowed against the estate, and avers that all claims have been paid except a claim of $6,000 in favor of Bruno H. Goll, which claim was founded on a promissory note of date October 1, 1896, due four years after its date, made by Emma Goll to Bruno H. Goll, for the sum of $10,000, on which note there was a credit of $4,000. The petition concludes by averring that Emma A. Goll left her surviving Bruno H. Goll, her son, petitioner, Emma H. Dacy, wife of Albert E. Dacy, her daughter, I. Blanche Goll, her daughter, married to Melvin A. Cushing, and George E. Goll, her son, and only heirs at law, and that Berta M. Goll is the wife of George G. Goll. Bruno Goll died testate September 27, 1905, and was never married, and Emma H. Dacy and I. Blanche Cushing are the sole devisees and legatees under the last will and testament of Bruno H. Goll, who left him surviving Emma II. Dacy, I. Blanche Goll (now Cushing), and George G. Goll, his only heirs at law.

Mrs. Cushing and Mrs. Dacy, as an individual, filed answers, consenting to entry of decree, as prayed. George G. Goll, Berta M. Goll, Clayton Cunningham as trustee and individually, and Clarence N. Durand answered, averring, among other things, that the note was given to Bruno H. Goll as an advancement and should be charged against his share in the estate. By an amendment to the answer, it is averred that there was no good or valuable consideration for the note. Replications were filed to the answers. The sole contested issue on the hearing was whether there was any consideration for the note.

Mrs. Dacy, the administratrix, and Mrs. Cushing, as sole devisees of Bruno II. Goll, deceased, are owners of the claim and, therefore, interested in having it sustained and the prayer of the petition granted. George G. Goll, as heir of his mother, Emma A. Goll, deceased, is opposed to the allowance of the claim, as depleting the estate, and, consequently, his share in it. The petitioner put the note in evidence and proved the signature of the maker, Emma A. Goll, deceased, and also put in evidence documents sustaining the averments of the petition.

The court found, among other things, that “Emma A. Goll, deceased, received no consideration whatsoever during her lifetime for said note, or for the consideration named therein,” refused to allow the claim, and dismissed the petition.

The note is dated October 1, 1896, and it is stipulated between the parties that Bruno H. Goll was, at that date, between 20 and 21 years of age. It appears from the evidence for petitioner that Emma A. Goll, deceased, as administratrix of her husband’s estate, sold to her son, Bruno H. Goll, a stock of drugs belonging to the estate for $4,000, and Bruno credited that sum on the note.

The main question to be decided is whether the finding of the court that there was no consideration for the note is sustained by the evidence.

Harry T. Jack testified that he was acquainted with Bruno H. Goll for about twenty years prior to his death; that they attended school together and were together until a few months before Bruno’s death; that he did not know of his having any property; that he was living with his folks and working in his father’s drug store and received a salary, how much, witness does not know, and sometimes borrowed money from witness.

Charles J. Ording testified that he knew Bruno from 1892 till his death; that he, witness, was manager of the drug store for Bruno’s father for six years, and was employed by Bruno for two years, and that Bruno was clerking in the drug store for his father October 1, 1896, and was receiving a salary of $75 per month, and that, prior to that time, he had no property, no real estate; that he spent a great deal of his salary, and borrowed money from witness in small amounts, two or three dollars at a time; that they were quite intimate. Bruno told him everything, and about the time of his coming of age he told him that he had received a nice present from his mother, but did not say what it was. He was a free spender of money. On cross-examination witness testified that sometimes Bruno’s father would give him $100; that he never knew of his giving him more than that, and that he gave-him diamonds and things.

George G. Goll testified that Bruno H. Goll told the rest of them that the note was a present from his mother, and that they often talked about it, saying it was not exactly fair; that Mrs. Dacy said so. In 1896 Bruno had just left the pharmacy school, and was working in the store, getting $75 per month. He had no property of any kind, except that allowance, prior to October 1, 1896. Father paid his expenses at the pharmacy and other schools. Witness was eleven years of age when the note in question was given.

Emma Goll Dacy, the administratrix, and petitioner, who is named Emma H. Goll in the petition, was questioned and answered as follows:

“Q. Now, state what was said, if anything, in regard to this supposed preference for Bruno H. Goll over the other children?
A. I said that as long as my father had given my brother $10,000, and my mother had given a note for it, and he had also made me a present when I graduated from grammar school, and also my younger sister, of $1,000, that I didn’t see why we didn’t have a note also.”

The witness further testified that what Bruno said was that he was delighted at receiving a present from his mother, which was a diamond stud on his twenty-first birthday; that he did not say, in the presence of witness, that the note was a present from his mother.

Mrs. Cushing testified, in substance, that Bruno did not say the note was a present from his mother, but from his father; also that Mrs. Dacy said it was not quite fair, etc.

Appellant’s counsel contend that the finding of the court is contrary to the weight of the evidence, and that the court erred in permitting George G. Goll to testify.

Bruno H. Goll was not 21 years of age at the time the note was made, and the evidence proves beyond question that he had neither money nor property, except his salary and such small gifts as his father made to him occasionally. In other words, the evidence shows the impossibility of any valuable consideration for the note having moved from him. This is impliedly admitted by counsel, in urging that the consideration may have moved from his father. This is very far fetched and not at all probable. Had Bruno H. Goll’s father desired to make a gift to him of $10,000, or of property of that value, no reason is apparent why he should have taken the roundabout way of transferring anything of valúe to his wife as a consideration for her note to Bruno, their son. It was not incumbent on the defendant George G. Goll to prove that no consideration moved from the father of Bruno H. Goll, or from any one except Bruno H. Goll himself. The presumption, in the absence of evidence to the contrary, is that the consideration for a promissory note moved from the payee, and on proof that no consideration moved from the payee, if it is contended that there was a consideration which moved from a third party, the burden of so proving is on the party so contending. If the consideration moved from another than the payee, this is susceptible of proof, whereas it would be impracticable, if not impossible, to prove that no consideration passed from any one in the world. “A gift is always revocable until it is executed, and a promissory note, intended purely as a gift, is but a promise to make a gift in the future. The gift is not executed till the note is paid.” Richardson v. Richardson, 148 111. 563, 572.

■ think the finding of the court that there was no consideration for the note is sustained by the greater weight of the evidence.

In the examination of George G. Goll he was asked if he knew what interest Mrs. Dacy had in the $6,000 claim, when this objection was made by the attorney for the petitioner: “Objected to by counsel for petitioner as being incompetent from this witness.” The court overruled the objection and the ruling is complained of. Counsel for petitioner contend here that George G. Goll was incompetent, as petitioner sued as administratrix and George G. Goll is directly interested, relying on section 2 of chapter 51 of the statutes, in relation to evidence. We are inclined to think the objection too general, that it was not sufficiently specific. The objection seems to be to incompetency of the evidence sought by the question, as coming from the witness. Evidently the court did not understand the objection as referring to the total incompetency of the witness; because, when a specific objection was made to the competency of Mrs. Dacy, the petitioner, as a witness, the court sustained it. But the court permitted Mrs. Dacy to testify as to matters testified to by George G. Goll, but limited her testimony to such matters. No specific objection having been made to the competency of George G. Goll on the hearing, it cannot be successfully urged here. Dewees v. Osborne, 178 111. 39.

The decree will be affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Ezra B. McCagg, Executor, Appellee, v. Catherine C. Touhy, Appellant, and Patrick L. Touhy et al., Appellees.
    Gen. No. 14,505.
    1. Appeals and errors—when mandate in foreclosure proceeding complied with. If a decree of sale is sustained except as to an allowance of solicitor’s fees hut reversed as to such allowance, and if prior to the reversal a sale to a third party has been made pursuant to the decree, an order requiring the refunding of the amount of such solicitor’s fees with legal interest and an order refusing to set aside the sale and an order refusing to direct a resale for the amount originally decreed less such solicitor’s fees, are each appropriate, as amounting to a practical observance of the mandate in question.
    2. Amendments and jeofails—power of court to amend certificate of evidence. There is no doubt of the power of a chancellor to amend his certificate of evidence.
    3. Writs of assistance—who cannot complain of issuance of. A former owner of the fee whose rights have been cut off by a decree of foreclosure cannot complain of the issuance of a writ of assistance to oust his tenant, such tenant not complaining of the issuance of such writ.
    Foreclosure. 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 June 8, 1909.
    William R. Chamberlain, for appellant; Addison Blakely, of counsel.
    John M. Blakely, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

The principal question in this case briefly stated is: Did the Superior Court of Cook county follow the mandate of the Branch Appellate Court of this district, issued in this case when it was heretofore before said court on a writ of error?

In determining this question, the exact language of the mandate is important and should be the starting point of any discussion of the matter involved.

After the formal opening of the mandate and the disposal of a motion to dismiss the writ of error, and after ordering the striking of some matters from the transcript which had been improperly placed therein, the mandate proceeded:

“And the court being of the opinion that in the rendition of the decree aforesaid there is manifest error in so far as said decree allows to complainant the sum of $600 for solicitors’ fees, therefore it is considered by the court that for that error the decree of the Superior Court of Cook county, in this behalf rendered, in so far as it allows to complainant the said sum of $600 for solicitors’ fees, be reversed; in all other respects said decree is affirmed and stands in full force and effect, notwithstanding the said matters and things therein assigned for error. And it is further considered by the court that this cause be remanded to the Superior Court of Cook county with directions to that court to deny any allowance of solicitor’s fees.”

The situation which confronted the Superior Court when this mandate was brought to it was this:

On March 18, 1902, a decree had been entered by the Superior Court in this cause, which was a suit for the foreclosure of a certain trust deed given by Catherine C. Touhy and Patrick L. Touhy, her husband, on certain premises to secure their note of $12,000, dated November 1, 1895. Said note was overdue when said bill was filed. The trust deed ran to Arthur B. Wells, trustee. The note had belonged in her lifetime to Amanda S. Cook, and at her death came into the hands of the complainant McCagg ass the executor of the last will and testament of said! Amanda S. Cook. The defendants to the bill were,' Catherine C. Touhy, Patrick L. Touhy, John E. Gebhardt, William G. Jackson, Allan A. Gilbert, Arthur B. Wells, trustee, and Frederick Herman Ga.de,, sao,cessor in trust. Gebliardt, Jackson and Gilbert were alleged to have, or to claim to have, some interest in the premises, subject to the trust deed.

The decree of March 18, 1902, on the bill taken as confessed by Patrick L. Touhy, William G. Jackson and Allan A. Gilbert, and on the answers of Catherine C. Touhy, Arthur B. Wells, trustee, and Frederick Herman Gade, successor in trust, replication thereto, and proofs and exhibits and master’s report thereon, found that all the material allegations in the bill of complaint were proved; that there was due the complainant the sum of $13,721.28 and interest from the 13th day of February, A. D. 1902, the date of the master’s report: “Also the sum of six hundred dollars also found due by said report as a reasonable solicitor’s fee under the provisions of the instrument sued on;” and ordered, adjudged and decreed that if the defendants, or some of them, did not pay to the complainant within five days from the date of the decree the sum of $13,789.19, with interest thereon until paid, and also the costs of the suit (including the said solicitor’s fees and the master’s fees, which were taxed at the sum of six hundred and eighty-six dollars, whereof $86 was to be paid to the master), then the premises described in the bill of complaint (block two in Rogers Park in the city of Chicago), or so much thereof as might be sufficient to realize the amount due the complainant, principal and interest, and also the costs of the suit, including solicitor’s'fees and other fees, disbursements and commissions, should be sold at public auction for cash to the highest and best bidder, by a master in chancery, named, after he had given public notice of the time, place and terms of such sale by advertisement for three successive weeks, etc.

Out of the proceeds of sale, the master should retain his fees, disbursements and commissions, see, also, that all unpaid costs and solicitor’s fees were paid to the persons entitled to receive the same, and then pay to the complainant, or to his solicitor of record, the amount due under the decree, with interest, and all taxable costs advanced by the complainant if the remainder of the proceeds were sufficient; if they were not sufficient, he should apply said remainder in satisfaction of said amount due as far as it would reach, and report the deficiency; and if there were any surplus, he was to bring it into court to abide a further order in the case.

After the coming in and confirmation of the master’s report of sale, in case any deficiency were shown in the amount due complainant, he was to be entitled to execution against the defendant, Catherine C. Touhy, who was declared personally liable therefor.

The usual provisions of a foreclosure decree as to redemption and the issuance of the master’s deed followed.

The decree then ordered that, upon the execution and delivery of such deed, “the grantee or grantees, his or their heirs, successors or assigns, be let into possession of the portion of said premises so conveyed, and that any of the parties to the cause who might be in possession of said premises, or any part thereof, and any person who since the commencement of suit should have come into possession under them or either of them, should, on production of said master’s deed and on service of a certified copy of the decree, surrender possession thereof to such grantee or grantees, his or their heirs, successors or assigns, and that in default of so doing a writ of assistance might issue in accordance with the practice of the court.”

From this decree the defendant Catherine C. Touhy prayed, but never perfected an appeal.

• In accordance with the terms of the decree the premises were sold at public sale by a master in chancery of the Superior Court on May 2, 1902, and by his report filed in said court on May 27, 1902, it was made to appear to said court that at said sale Ezra B. Mc-Cagg as executor of the last will and testament of Amanda S. Cook, deceased, offered and bid therefor $14,788.21, and that that being the highest and best bid therefor, the master struck off and sold to said bidder the premises involved, and received the said sum therefor; that the master had distributed the said proceeds as follows: To John M. Blakely for taxed costs except master’s fees, $15.50; retained by the master as the amount of his fees, commissions and disbursements, $299.50; to the complainant Ezra B. McCagg as executor of the last will and testament of Amanda S. Cook, $14,473.46,—said last named sum being made up of $600 for solicitor’s fees as allowed in the decree, and of $13,873.46, debt and interest.

After the time of redemption had expired, namely, on August 6, 1903, a master’s deed was issued by the master to Ezra B. McCagg, as executor, etc., conveying said premises.

On July 5, 1905, a writ of error was sued out from this court by Catherine C. Touhy and Patrick L. Touhy, to reverse the decree of March 18, 1902, and on May 14, 1907, the mandate quoted at the beginning of this opinion was issued from the Branch Court.

The opinion of the court in the cause, delivered by Mr. Justice Baker, is found in 134 111. App. 56. It closes with these words: “So much of the decree as allows to complainant $600 for solicitor’s fees will be reversed; in all other respects the decree will be affirmed, and the cause will be remanded to the Superior Court with directions to deny any allowance of solicitors’ fees.”

The Superior Court had then before it the question how to give effect to the mandate which affirmed the decree in every particular save one. The decree had been executed. The rights of third parties under a judicial sale of the premises involved had been, prima facie at least, shown to exist by proceedings hereinafter more fully referred to, which had already been taken in the case in the Superior Court by Jane Creigh Wells to secure a writ of assistance shortly after the writ of error (to which she was not a party) had been sued out of the Appellate Court. Such rights are always protected when possible. The decree, though adjudged erroneous in allowing the item of $600 solicitors’ fees, had been affirmed except as to that item and to stand in full force and effect. The principal part of the decree thus affirmed was the order for sale by the master, after certain notice and on certain conditions and contingencies. The sale had taken place. Persons not affected by the writ of error held under it. Was the Superior Court to set aside the sale, oust the purchaser’s assignee, and thus in effect vacate entirely the decree which had been solemnly affirmed in great part?

We cannot hold that this was its duty. But it was the theory of the appellant that this should be done. Arguing that the sale was improper, because the amount of payment which the decree required, in order to avert it, was too large by $600, she moved in the Superior Court on November 26,1907, as appears from matter in the transcript of record, “to execute the mandate of the Appellate Court for the first district of Illinois, entered in this behalf, by ordering a sale of the premises described in said complainant’s bill of complaint, said sale to he in pursuance of the decree of this court entered herein March 18, 1902, as modified by directions of such Appellate Court.” And on the same day she moved “to vacate and set aside the sale had under and in pursuance of the decree entered herein by the court on March 18, 1902, for the reason, first, that said sale was void because the decree upon which it was based was invalid; second, the purchaser, McCagg, as executor, etc., the complainant in the proceeding, had notice of such invalidity; third, that said McCagg as executor, etc., was not a purchaser for value; and fourth, that said defendant has at no time had the opportunity to exercise her right of redemption of said premises from sale had under a valid decree as provided by statute. ’ ’

Exactly what place these motions (made on Novemher 26, 1907, and denied on the same day, from which denial an appeal was denied) have in the transcript of a record in an appeal from final orders entered, as the appeal bond recites, on the 23rd and 30th days of September, 1907, we cannot see; but they have been placed there presumably by the request of the appellant, and serve to show in detail the position which the appellant took on September 23rd and 30th on and in the motions which were then granted and denied.

The orders from which the appeal was allowed are thus described in the order allowing the appeal:

1. The order entered September 23, 1907, directing the payment into court of $762.92 for the benefit of Catherine C. Touhy.

2. The order entered September 23, 1907, overruling motion to enter decree of sale submitted on September 23, 1907.

3. The order entered herein September 30, 1907, directing further writ of assistance in favor of Jane Creigh Wells.

4. Order entered September 30, 1907, on motion of Catherine C. Touhy, praying court to execute mandate of Appellate Court by entering decree disallowing solicitor’s fees, but conforming to decree of March 18, 1902, in all other respects.

The assignments of error also attack these orders. We will take them up seriatim.

The first order complained of was made on motion of the complainant, and reads as follows:

“This cause coming on to be heard upon motion of complainant, and the defendant, Catherine C. Touhy, appearing by her solicitor, and it appearing to the court that the solicitor’s fee of six hundred dollars ($600) heretofore allowed by this court to the complainant therein was by the Appellate Court for the first district directed to be disallowed,
And it appearing to the court that the complainant therein has tendered to Catherine C. Touhy, the principal defendant herein, through her solicitor, the said sum of six hundred dollars ($600), together with legal interest since May 2, 1902, amounting in all to seven hundred and sixty-two and 93/100 dollars, and said Catherine C. Touhy has refused to accept said sum of money;
It is therefore ordered that said complainant pay said seven hundred and sixty-two and 93/100 dollars into court for the use and benefit of said Catherine C. Touhy, to be paid over to said Catherine C. Touhy upon her request therefor, upon the clerk of this court, and the court finds that the complainant, through his solicitor, has paid to the clerk of this court said sum of seven hundred sixty-two and 93/100 dollars, in compliance with the order of this court.”

The motion alluded to in the order was a written motion of complainant “for an order directing and granting leave to him to pay to Catherine C. Touhy, defendant in the cause, the six hundred dollars allowed to him as solicitor’s fee by former order of this court, but disallowed and ordered to be refunded by the remanding ordei; of the Appellate Court, and upon her refusal to accept the same, to pay said six hundred dollars into court for the use and benefit of said Catherine C. Touhy, and to have such order of acquittance therefor as to the court seems proper.”

It was undoubtedly a somewhat strained construction of the “remanding order of the Appellate Court” to say that it “ordered” the six hundred dollars “to be refunded,” but we think after all that an order of the Superior Court for such refunding was a practicable and just method of carrying the judgment that the Appellate Court did order into effect. Moreover, we think it was justified by authority.

In Soles v. Sheppard, 99 Ill. 616, solicitor’s fees were improperly allowed by the Circuit Court, and the Supreme Court held that there being “nothing to show plaintiff in error is liable for any portion of the fee allowed, the court erred in decreeing its payment.” But the premises had been sold and bid in by the complainant in the foreclosure suit, who was the defendant in error, and the sale approved. Therefore the Supreme Court adjudged: “The decree of the court (Circuit), therefore, so far as it allows a solicitor’s fee, $175, is reversed, hut it is in all things else affirmed. And a decree for $175 with interest at the rate of six per cent per annum from the 27th day of October 1877, until paid, is rendered in this court in favor of plaintiff in error against defendant in error.”

The Supreme Court could not have considered the last part of this order inconsistent with the partial reversal which went before, or it would not have made it an appendix thereto. It is then an authority for holding that the action of the Superior Court in the case at bar was not inconsistent with the precisely similar partial reversal of the original decree.

The appellant, however, contends that because the decree mentioned the payment of too great a sum as necessary to avert the sale, and an attempt to redeem for the sum really due complainant would have been ineffective until after the pronouncement of the Appellate Court, therefore there should be a vacation of the old sale, and a chance given her to pay the revised amount of the decree, and if there were, nevertheless, a sale, a chance to redeem for a less sum. Apart from the fact that there has been no attempt to satisfy the decree or to redeem, and no tender at any time of any sum, and the fact that the purchaser’s rights under a judicial sale are always under the protection of the courts, the reasoning is unsound.

The original decree was in all respects “affirmed” except as to the solicitor’s fees—not reversed with directions to enter a new one; and though the Branch Appellate Court might properly enough have made its order more explicit, as did the Supreme Court in Soles v. Sheppard, we do not think the Superior Court erred in its construction.

. As for the matter of redemption, we cannot see that any right of the appellant was violated or, theoretically at least, even affected.

As appellee argues, “The decree ordered the property to "be sold to the highest and best bidder for cash. But it did not in any way control the amount to be bid. ’ ’

Had the redemption been made, the $600 originally going to the mortgagee would have had to be repaid, under the decision of the Branch Appellate Court, to the appellant, as it is now so repaid.

• The second order appealed from overruled the motion to enter decree of sale submitted on September 23, 1907.

This proposed decree provided “that the decree of sale of the property hereinafter described had, under and in pursuance of the said decree of foreclosure entered herein on the 18th day of March, 1902, and reversed by the Appellate Court as aforesaid, be and the same is hereby vacated and set aside and declared null and void.”

Of course, if the first order appealed from was justified, the second one, denying the entry of this proposed decree, was also correct. It is therefore not necessary that we should pass on the other objections that could be found to the proposed decree. But we agree with this remark in the argument of appellee’s counsel—“If the rights of a third party had not intervened and the Appellate Court had reversed this decree entirely, it certainly would not have done so without in effect directing that a new trial be had and the amount due under this trust deed determined, including therein not alone the principal and interest due on said note, but also all taxes and assessments paid by the holder of said note, with interest thereon. ’ ’

The third order appealed from raises a different question.

On September 30, 1907, the Superior Court entered an order in which, after reciting a petition of Jane Creigh "Wells for a writ of assistance in the cause, and that notice had been given to Catherine C. Touhy, S. Rogers Touhy, and all parties in interest, it found from “affidavits, evidence and admissions in open court, that Jane Creigh Wells became a bona fide purchaser of block two in Rogers Park (the premises involved in this suit), and that her title was derived under the decree of foreclosure of March 18, 1902, and the master ’s deed pursuant thereto; that at the time she became such bona ficle purchaser for value no appeal or writ of error had been prosecuted or was pending from said decree, and that by an order of the court entered July 18, 1905, she had been put into possession of all of block 2 except a piece twenty-two by thirty-one feet on the northwest corner of Clark street .and T'ouhy avenue; that she was not in possession of this piece because the right of possession thereof was claimed by one S. Rogers Touhy under a lease from the defendant, Catherine C. Touhy, which expired September 10, 1905; that Jane Creigh Wells had, after proper service of the decree and the master’s deed on Catherine C. Touhy, made demand since September 10, 1905, on S. Rogers Touhy for the possession of this excepted piece of block 2, and S. Rogers Touhy had refused to give up such possession.”

It then ordered that a writ of assistance as prayed for in said petition against said Catherine C. Touhy, S. Rogers Touhy, and all persons claiming by, through or under them, or either of them, issue forthwith, to eject and move them from this excepted portion of block 2 and put Jane Creigh Wells into possession thereof.

It is this order which is referred to in the allowance of the appeal as the “order of September 30,1907, directing further writ of assistance.”

The order does not seem erroneous to us.

By a previous order in the cause entered July 18, 1905, the possession of the excepted corner of block 2 had been found to be under a lease from Catherine C. Touhy, expiring September 10, 1905, and in the hearing of the petition for the order of September 30,1907, which is appealed from, counsel for Catherine C. Touhy and for S. Rogers Touhy, as the court recites in the certificate of evidence, admitted the same thing.

The fact that Jane Creigh Wells is the wife of Artirar B. Wells, who was the trustee in the trust deeds foreclosed, by itself gave her no notice of that which her husband as a party to the suit might be presumed to know, even if such knowledge would—which we do not assert—make any difference to her position herein. Even had the plaintiff in the suit been the purchaser who was demanding a writ of assistance, the citation of Smith v. Brittenham, 109 Ill. 540, would fail of point, because in that case the decree was reversed. In the case at bar it was affirmed except as to a small exception.

We do not think it necessary to discuss at length the point raised by appellant about the amendment of the certificate of evidence. There was evidence enough in the record, however it may be viewed, to justify the writ of assistance complained of. But there was no doubt of the power of the court to amend. Heinsen v. Lamb, 117 Ill. 549.

S. Bogers Touhy, the record shows, only held as the lessee of Catherine C. Touhy, nor has he appealed from the order ordering the writ of assistance. Catherine C. Touhy, who has appealed, has nothing to complain of in it.

The fourth order appealed from was one entered on September 30, 1907, reading as follows:

“On motion of solicitor for defendant Catherine C. Touhy filed herein this day to enter an order to execute the mandate of the Appellate Court of Illinois for the first district, said motion is by the court denied, an order having heretofore been entered by the court disposing of said matter in accordance with said mandate.”

This of course needs no discussion in view of what has already been said by us. It was not erroneous.

If there be an irregularity in taking this one appeal from all these various orders, it is not objected to and we do not need to notice it.

The orders of the Superior Court are and each of them is affirmed.

Affirmed.


text:
    Walter W. Wilcox, Appellant, v. Eleanor Andrews et al., Appellees.
    Gen. No. 14,515.
    1. Appeals and ebrobs—when finding of court not disturbed. If the record does not show upon what ground the judge decided a cause his finding will not be disturbed if there is any ground upon which it may be sustained.
    2. Appeals and errors—when finding of court not disturbed. A finding of fact by the trial court will not be disturbed on review as against the weight of the evidence unless clearly and manifestly so.
    3. Brokers and factors—when not entitled to commissions. If a broker is a mere volunteer or the agent of the purchaser, he cannot recover a commission from the owner for a sale effected; his employment by the owner must be established as a condition to recovery.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed June 8, 1909.
    Statement by the Court. This is an appeal from a judgment of nil capiat and for costs against the plaintiff, entered by the Municipal Court of Chicago on December 10, 1907. The cause was an action in assumpsit, brought by the plaintiff, Wilcox, for commissions claimed by him to have been earned by him in procuring a tenant for premises at 192 and 194 South Clark street in the city of Chicago, belonging to the defendants.
    The declaration, in addition to the common counts, contained two special counts.
    The first one, after reciting that the business of the plaintiff was that of a real estate broker, alleged that the defendants on February 5, 1907, represented that they owned the premises at Nos. 192 and 194 South Clark street, in Chicago, and engaged the services of the plaintiff to procure a tenant for said building, and agreed in consideration of plaintiff procuring a tenant to pay plaintiff as his commissions and compensation for such services, if he succeeded in procuring a tenant who would lease said premises for a term of seven years, the sum of five per cent on the first year’s rental, to be paid by said tenant, and one per cent of the aggregate rental to be paid by said tenant for the last five years of said term; that afterwards the plaintiff, in pursuance of the agreement, on March 1, 1907, procured as tenant the Waeker & Birk Brewing & Malting Company, who leased the premises for seven years at an annual rental of $10,600 a year, whereby the defendants became indebted to the plaintiff in the sum of $1,500.
    The second special count differed from, the first only in stating the agreement to be that the defendants should pay the plaintiff for his services the regular and usual commissions paid to brokers in the city of Chicago for similar services, and that such regular and usual commissions for a lease of the character described were five per cent of the rental for the first year of said term and one per cent of the aggregate rental to be paid for the last five years.
    The defendants all pleaded the general issue to the declaration, and gave notice under the plea of special matter of defense, namely: That said premises de-
    scribed in the declaration were leased to the Waeker & Birk Brewing & Malting Company on a proposition submitted by one Fitzgerald, a real estate agent of Chicago, to whom was paid the commission on said lease as established by the Chicago Beal Estate Board of Chicago, amounting to the sum of $1,060, and that the defendants had no knowledge that the plaintiff had been instrumental in presenting* said property to said Waeker & Birk Brewing & Malting Company, when the proposition submitted by. Fitzgerald was accepted by these defendants and when the said commissions were paid to said Fitzgerald.
    The cause was submitted to the court. without a jury, and the court found the issues for the flefendants and gave judgment as before indicated on that finding.

      The assignments of error in this court are on rulings on the evidence, and that the finding and judgment of the court were against the law and the evidence.
    W. E. O’Neill, for appellant.
    Weart & Weart, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

The appellant in this cause states the questions involved to be these:

First. Were the powers of Henry E. Mason as agent of the defendants sufficiently broad to enable him to bind the defendants in the employment of a broker!

Second. Was Walter W. Wilcox the procuring cause of the leasing of the premises in question to the Wacker & Birk Brewing & Malting Company!

Upon these questions he makes an elaborate and forceful argument, which, on the other hand, the appellees attempt to controvert. The matter, however, on which we place the decision of the case is dismissed by the appellant with the statement that “The uncontradicted evidence shows, and the defendants concede, the employment by Henry E. Mason of the plaintiff in this suit.” To which, however, appellees rejoin: “Appellees do not concede and the evidence does not show that appellant Wilcox was employed by Henry E. Mason to procure a tenant for appellees, as stated in the opening paragraph of appellant’s argument.”

We are forced by an attentive consideration of the record to the conclusion that the position of the appellees is correct to this extent at least—that the record does not show that a finding of the trial judge that Wilcox was not employed by Mason would be manifestly against the weight of the evidence. It is plain that even assuming both that Henry E. Mason wa.s the agent of the defendants with powers sufficiently broad to enable him to bind the defendants in the employment of a broker, and that Walter W. Wilcox was the procuring cause of the leasing of the premises in question to the Wacker & Birk Brewing & Malting Company (controverted propositions on which we do not pass), the conclusion does not of itself follow that the plaintiff should recover from the defendants. For that result there must be also an exercise of the said powers of Henry E. Mason and an employment, express or implied, of the plaintiff by him. The broker must have been authorized to act as the agent of the defendants. Hafner v. Herron, 165 Ill. 242.

In that case the Supreme Court says: “There must be an employment to constitute a broker the agent of a vendor,” etc. And this is only common sense and right reason. Since the ground on which the trial judge, sitting without a jury, decided this case, does not appear from the record, we should not disturb his judgment unless on this point, as well as the others, we can say it is clearly against the evidence. We cannot do so. From a comparison of the testimony of Mason, Wessels and Wilcox, conflicting as it is, it would appear rather to us that Wilcox was acting as a volunteer, whose services were not accepted, or as the agent of the Wacker & Birk Brewing & Malting Company, and not of the defendants. In neither of these cases would the defendants be liable to him because they afterward leased the premises to the Wacker & Birk Brewing & Malting Company.

The question is well discussed in the opinion by the Branch Appellate Court of this district in Morton v. Barney et al., 140 111. App. 333. “There is no warrant for the claim,” says Mr. Justice Freeman in that opinion, “that where a broker goes to an owner, asking and receiving the price of a piece of property, he thereby becomes the agent of the owner entitled to commissions, if the owner subsequently disposes of the property. Nor can a broker, by letters of his own addressed to a possible purchaser, or by writing an owner that he has offered the property to such proposed purchaser, make a contract of employment for himself entitling him to commissions. It takes two to make a contract of that kind, and an owner is under no obligation to respond to every letter he may receive from a real estate broker whom he has not employed.”

In the present'case, Mr. Mason on the witness stand distinctly repudiated any employment whatever of the plaintiff. His testimony was to a consistent refusal to make such employment, and that the nearest approach to such an employment was nothing more than a mere permission to Wilcox to submit in writing, as agent for would-be lessees, such propositions as he desired to. But Mr. Mason says he told Wilcox that neither he (Wilcox) nor he himself (Mason) had authority to offer the property for lease.

In answer to the question whether “he did not tell Wilcox that if he (Wilcox) did not stop sending in letters and advertising the property he (Mason; would take the property away from him,” Mason answered that he did not make any such statement “because he had never given the property to him.”

Mr. Wilcox gives a different version of his conversations with Mr. Mason, but on an analysis of his testimony we cannot find a place where he explicitly swears to any employment. His state of mind as to the employment which he claims seems to be somewhat at least derived from a theory that a failure to respond to the letters of a broker stating that he was offering the premises to third parties would estop the owners from denying such employment. Yet in answer to a demand for a categorical statement of a conversation with Mason over the telephone, he says that Mason said: “I do not want you to offer it to every broker in town, and advertise it, or write any more letters in regard to it. I won’t recognize you at all.”

The conversations he swears to with Olson, Mason’s clerk (and which Olson practically admits), do not help him materially, it seems to us, both on account of Olson’s lack of authority in the matter, which Wilcox must have recognized when he found himself merely referred by Olson to Mr. Mason, and because the conversations in themselves amounted to nothing-more than an absolute failure to agree on terms of employment, even if Olson had had any authority about it. “I told him” (Wilcox) “that he would probably have to be satisfied with one-half the commission,” Olson says, but tiat was after he (Olson) had told Wilcox that he did not know even whether the stores were rented, and would have to refer him to Mr. Mason. When the defendants’ counsel asked 01-’son whether he had any directions from Mr. Mason on the question of the commission, the plaintiff’s counsel objected to the question and it was excluded.

Mr. Kinahan, an employe of Wilcox and a witness called in rebuttal by the plaintiff, certainly testified to a conversation with Mr. Mason which would, if believed, have justified the court in holding- that Wilcox had been employed by Mason.

After stating that on a visit to Mr. Mason' with Mr. Wilcox, they were informed that the place was rented, he said that he (Kinahan) had been there two or three times to get some kind of expression from Mr. Mason “as to what price was on the store and also as to the commission there would be,” and got no satisfaction. Then he was asked these questions and gave these answers:

“Q. What do you mean by that?
A. Well, he would not talk to me at all. Up to one visit before this he did not give me any price or the price of any commission. The visit before this he gave me prices and the commission he would pay.
Q. Tell me about the previous visit.
A. He just told me the price was $12,000, and I am authorized to pay you full board rates.”

If the trial judge had found the issues for the plaintiff, this testimony would have prevented our disturbing such a finding on the question of the fact of employment ; but as he did not, we cannot assume that he believed it. It is entirely inconsistent with Mason’s testimony, and it does not accord well even with the testimony of Wessels and Wilcox. It is strange that this testimony, if relied on, should not have been produced originally instead of being postponed to the case in rebuttal.

Inasmuch, therefore, as we do not hold that a conclusion of the trial judge that there was no employment of the plaintiff by Mason would have been so clearly and manifestly against the weight of the evidence as to justify us in setting it aside, nor that we can assume from the record that such finding on this fundamental factor of the plaintiff’s case was not the ground of the judgment for the defendants, we must decline to disturb the disposition of the cause which the Municipal Court has made. Its judgment is accordingly affirmed.

Affirmed.


text:
    Clara E. Mason, Appellee, v. Ada S. Wedekind et al., Appellants.
    Gen. No. 14,529.
    1. Creditors’ bills—what proof not essential to relief. In order to attack conveyances as made in fraud of creditors it is not necessary that the complainant establish the insolvency of the grantor at the time of such conveyance. Held, in this case, that under the other findings of the decree it was sufficient if insolvency at the time of the attack upon such conveyance was established.
    2. Creditors’ bills-—what relief granted under general prayer. A sale by a master, notwithstanding the prayer is that the sheriff he directed to sell, is justified under the prayer for general relief.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Farlist Q. Ball, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed June 8, 1909.

      Statement by the Court. This is an appeal from a decree of the Superior Court of Cook county, sitting in chancery, entered January 14, 1908. The decree found that the complainant, Clara E. Mason, recovered a judgment in the Superior Court of Cook county on May 24, 1906, against Ada S. Wedekind, which judgment now amounted with interest and costs to $901.07; that said judgment was recovered in a suit at law wherein an attachment in aid had issued and been levied on lot 39 in block 6 in Baxter’s subdivision of the southwest quarter of the southeast quarter of section twenty (20), township forty (40) north, range fourteen (14) east of the third principal meridian; that a special execution issued on said judgment on May 28, 1906, which on May 29, 1906, was delivered to the sheriff and by him levied on said real estate; that said execution was still in the hands of the sheriff unsatisfied; that prior to the rendition of said judgment, on February 16, 1906, by deed dated December 1, 1905, Ada 'S. Wedekind made a pretended conveyance of said real estate to one James E. Rich, and that said James E. Rich on February 16, 1906, by a warranty deed dated December 1, 1905, conveyed said premises to Charles S. Tagney; that the indebtedness on which the said judgment was rendered accrued about November 4, 1897; that the conveyances from Ada S. Wedekind to James E. Rich and from Rich to Charles S. Tagney were not real, but were mere shams and made with the intention of defrauding complainant out of her just demands; that no consideration was paid by Rich to Ada S. Wedekind or by Tagney to Rich or Wedekind for the said conveyances or either of them; that the said premises are now held by said Charles S. Tagney in trust for the said Ada S. Wedekind, and for her use and benefit; that by the said conveyance made by her, said Ada S. Wedekind rendered herself insolvent; that upon the said judgment there is now actually and equitably due the complainant, Clara E. Mason, the sum of $901.07.

      The decree then ordered, adjudged and decreed that the said conveyances from Ada S. Wedekind to James E. Bich, dated December 1, 1905 (recorded February 16, 1906), and from James E. Bich to Charles S. Tagney of the same date, purporting to convey said real estate, be declared null and void as to the said complainant Mason, and set aside as fraudulent as to her, and that the complainant have a lien on said real estate for $901.07, together with all the costs of the suit.
    It also ordered that unless the defendant, Ada S. Wedekind, or some of the defendants, within two days from the date of the decree paid to the complainant $901.07 with interest, and paid to the officers of the court the taxed costs in the cause, the premises hereinbefore described, or so much thereof as might be necessary to pay the amount so found to be due the complainant, with interest thereon, and the costs aforesaid, and which might be sold separately without material injury to the parties in interest, should be sold at public vendue to the highest and best bidder for cash, by James V. O’Donnell, master in chancery of the court, at the judicial salesrooms, etc.
    Besides the usual orders about notice of the sale and future redemption, etc., the decree contained directions that “the master, out of the proceeds of the sale, should retain his fees, disbursements and commissions, and pay to the officers of the court their costs in the cause, and out of the remainder pay to the complainant the amount by the decree found to be due her, with interest thereon at the rate of five per cent per annum, from the date of this decree to the date of such sale.
    The decree closed with this paragraph:
    “And it appearing to the court from said master’s report and his certificate attached thereto that said master is entitled to the sum of $56.25 as and for his statutory fees for taking testimony as provided by law, and that the reasonable fee of said master for his other services in and about the said reference and the said report is the sum of one hundred dollars; It is therefore ordered by the court that the said sum of $156.25 be and the same is hereby taxed as a part of the costs of this cause. ’ ’
    Besides attacking the other findings of the chancellor in the Superior Court somewhat generally, there is especial objection made in the assignments of error in this court, to the finding that Ada S. Wedekind by the conveyance of said premises rendered herself insolvent, on the ground that “it appears conclusively in complainant’s testimony that she was solvent on the day said conveyances were recorded, and had then in the bank a sum of money more than double the amount of the complainant’s demand.”
    It is also especially urged that the Superior Court erred in not finding that the property in question was the absolute property in fee simple of the defendant Tagney, and that the same was inherited by him from his father.
    The assignments of error include these:
    “Eleventh. The court erred in decreeing that in .default” (of the payment ordered) “the premises in question may be sold to the highest and best bidder by Master in Chancery James V. O’Donnell at public auction after giving the usual notice, etc. Whereas the prayer in said bill specifically prayed for the setting-aside of said conveyance in aid of the execution described therein, which is the only relief that should have been decreed, if any, to the complainant.
    “Fifteenth. The court erred in finding that said master is entitled to the sum of fifty dollars and twenty-five cents ($50.25) for his statutory fees for taking testimony; also that the reasonable fees for said master for his other services in and about the said reference and the said report is the sum of one hundred dollars, and decreeing that the same be taxed as a part of the costs in this case when no evidence taken or any law offered authorizing said charge or charges, and the same being contrary to the law. (Sic.)”

      Edward U. Fliehmann, for appellant.
    Mason & Wyman, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

It is unnecessary and undesirable in this opinion to discuss the evidence which justified the master in recommending and the court in entering the decree in this cause. It is plain to us from reading it, that Mrs. Ada Wedekind being the owner in fee simple of the premises described in the decree, the title to which she had obtained through a valid sale ordered by the Probate Court, and being threatened with suit on a note which she did not wish to pay, conveyed the said premises (through an intermediate party) to her son, Charles Tagney, to take them out of the operation of a judgment and execution if they should be obtained.

The testimony of the defendants Wedekind and Tagney, by which their theory of the case appeared, was inconsistent, vague and indefinite and by no means overcame the inferences which could legitimately be drawn from the admissions and the circumstances which were also proven by them. In other words, despite that part of the testimony of the defendants which was adverse to the complainant, the complainant principally proved her case by the defendants themselves, in connection with the documentary proof offered. We think the evidence sustains the decree.

As for the insolvency of Mrs. Wedekind when the transfer complained of was made, which it is said was not proven, it was not necessary to prove it in order to attack the conveyance. Keller v. Whitledge, 38 Ill. App. 310; Lobstein v. Lehn, 120 Ill. 549.

It would have been sufficient, under the other findings of the decree, to have found that Mrs. Wedekind was insolvent when the attack was made.

But, moreover, the fact that Mrs. Wedekind had a deposit in the Savings Bank for three days (including a half and a whole holiday) after making the conveyance, could not in any event be used to defeat this decree. The almost synchronous withdrawal of the deposit was indeed a strong circumstance in itself tending to prove the conveyance fraudulent.

The form of the decree providing that the property should be sold by the master, although the special prayer of the bill asks that after the conveyance is set aside, “the sheriff of Cook county be directed to advertise and sell the said premises for the payment and satisfaction of the judgment, interest and costs” in the bill described, is justified under the prayer for general relief by the authority of Illinois precedents.

The doctrine of the early case of Farnsworth v. Strasler, 12 Ill. 483, and of the later one of Davidson v. Burke, 143 Ill. 139, taken together, settles the right of the chancellor in his discretion to make the order about the sale which he did make under the prayer for general relief. It had the advantage of including the costs of the later proceeding in the amount for which the sale was to be made.

We see no ground for questioning in this court on this record the amount of the master’s fees provided for.

The decree of the Superior Court is affirmed.

Affirmed.


text:
    Hazel Richason, Appellee, v. Chicago & Western Indiana Railroad Company, Appellant.
    Gen. No. 14,385.
    Master and servant—when former not liable for injury to child of latter. If a master provide a dwelling for a servant and Ms family, lie is not liable for an injury to a young child of such servant occasioned by its falling through a trap door which had been left open by its mother, and the fact that it was Inconvenient to keep such trap door continually closed is not material, nor is the fact that the master had promised to change the construction of any effect upon the question of liability.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed.
    Opinion filed June 15, 1909.
    Statement by the Court. This is an appeal from a judgment of the Circuit Court of Cook -county in favor of the plaintiff below and appellee here against the defendant below and appellant here. The judgment is for $9,000 and was rendered on the verdict of a jury in an action for personal injuries suffered, as it was alleged in the first count of "the declaration (which was filed April 12, 1904), by the plaintiff’s falling through a trap door and down a certain steep flight of stairs in -a building (at 125th street and Torrence avenue, in Chicago), which building the family of which she was one was allowed to occupy as a part of the wages which her father, one F. L. Bichasen, was to receive from the defendant as a bridge tender for the defendant. It is alleged in said count that at the time she moved into said building it was in an unsafe and dangerous condition, which defendant knew and plaintiff did not lmow, and that it was by reason of this unsafe and unsuitable condition the defendant fell down and was injured August 1,1899.
    The second count of the declaration avers a duty of the defendant to keep the premises involved in a reasonably safe and suitable condition, so that persons rightfully on said premises would not be injured, and alleges that nevertheless it allowed the said building and particularly a certain stairway therein, to be and remain in an unsafe and dangerous condition, so that plaintiff fell down the stairway and struck the lower floor and injured herself, so that as a result she contracted a severe hip disease.
    The third count alleges that the plaintiff, at the time of the accident, was with her family living in the premises involved at the invitation of the defendant company, and that it was its duty to keep it in a reasonably safe and suitable condition, but that the stairway from the lower floor to the second floor was protected with a certain heavy trap door, which said trap door was so large and heavy that it was impossible to raise and lower said door, and consequently said stairway and trap door were unsafe; that the defendant was notified of said defective condition, and promised “to repair and fix” them, and place them in a suitable condition; that said plaintiff thereupon, relying on said promise, continued to remain on said premises, but that said defendant carelessly and negligently failed to remedy said defective condition, by reason whereof the plaintiff was caused to fall through said trap door and down said stairway, to her great injury and damage.
    A fourth count filed later (November 28, 1905) alleged that the defendant leased the said building to F. L. Eichason, the father of the plaintiff, and that at the time of said leasing there was a certain trap door of great weight used for the purpose of covering a steep flight of stairs leading from one floor to another, which said trap door and stairway were dangerous and unsafe, as the defendant knew; that it promised to rectify and repair them; that relying on that promise, the said father of the plaintiff entered into said premises as a tenant, and that the family of said Eichason, the father of the plaintiff, consisted of himself, his wife and children, of whom the plaintiff, a minor of tender years, was one. It alleged also that because of the careless and negligent failure to repair and render safe the trap door and stairway, the plaintiff fell through the trap door and down the stairway, permanently injuring her.
    A fifth count, filed at the same time, was substantially to the same effect.
    A sixth and seventh count were afterward (September 25, 1907) filed.
    The sixth (or third additional count, as it is denominated) alleged that the defendant maintained a certain bridge near 125th street and Torrence avenue in Chicago, and near by a certain house for the bridge tender to reside in with his family, in order that the bridge tender might better attend to his duties about said bridge, and that the plaintiff’s father was the bridge tender and at the special request of the defendant occupied the house as such bridge tender, with his family, which included his daughter, the plaintiff, who was a child of but six years of age. It further alleged that about five weeks before the accident, and at other times prior to that, the father of the plaintiff complained to the defendant concerning the construction of a trap door, hatchway and staircase on said premises; and the defendant agreed with and assured the father of the plaintiff that the defendant would cause the trap door, hatchway and staircase to be changed within a reasonable time, so that the same would be reasonably safe for the occupants of the. house. This promise the defendant broke, and the plaintiff, in consequence, fell down the hatchway.
    A seventh count (the fourth additional count) was filed November 4, 1907. It differs from the 6th count principally in alleging that the promise of the defendant was to reconstruct and change the house so that the hatchway and staircase leading to the basement therein would be inclosed on the main floor by a partition and vertical door.
    To each and all of these counts the defendant pleaded the general issue of not guilty.
    The issues were submitted to a jury. After the plaintiff’s evidence was in, the defendant moved for a peremptory instruction, which was refused. It then moved, by separate motions, for instructions to disregard each of the counts of the plaintiff’s declaration. This motion was also denied. At the conclusion of all the evidence the defendant renewed this motion, and it was again denied. The defendant then moved seriatim for an instruction to the jury to disregard each respective count of the declaration. Each motion was denied. At the request of the plaintiff the court gave the jury two instructions, which in the record are denominated A and B, and at the request of the defendant three others, which are called 1, 2 and 3. A fourth instruction was tendered by the defendant and refused. To the giving of the instructions A and B, and to the refusal of instruction 4, the defendant excepted.
    The jury returned a verdict for the plaintiff for the sum of nine thousand dollars. A motion of the defendant for a new trial was overruled and the judgment herein appealed from followed.
    In this court the defendant has assigned as error rulings on evidence, the denial of a peremptory instruction, the refusal to instruct the jury to disregard the several respective counts of the declaration, the denial of a new trial, the alleged excessiveness of the verdict, and that the verdict and judgment were against the weight of the evidence.
    It may be properly noted in this statement of the pleadings and proceedings below, although really immaterial to the decision here, that originally the Belt Railway Company of Chicago was a co-defendant to the suit, but after the plaintiff’s testimony was in, the cause was by the plaintiff discontinued against that company and all the pleadings amended accordingly.
    William L. Reed and William H. Rust, for appellant.
    Darrows, Masters & Wilson and P. W. Bentley, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The facts out of which the alleged liability of the defendant to the plaintiff in this case arose, are these:

The plaintiff, Hazel Richason, fell through a trap door hereinafter described, while her mother was in the basement below, and was thereby injured. She is a daughter of Frank A. Richason, who brings the suit as her next friend. In 1899 his family consisted of himself, his wife, a son and two daughters. His son was about twelve years old, his daughter, the plaintiff, about six years old, and the youngest about a year and a half old. Prior to May 1st he was employed by the Chicago and Western Indiana Railroad Company at Hammond Junction, at 87th street and Eggleston avenue, at the interlocking tower—“handling the switches and watching in the interlocking tower”—he says, “under George Espey, signal engineer.” Mr. Espey was the signal engineer with an office at the Dearborn station in the city of Chicago.

As the contention of the plaintiff involved the relation which existed between the Chicago & Western Indiana Railroad Company and Frank A. Richason in the occupancy of the house where the accident to his daughter occurred, it is perhaps desirable to give his own version of it as nearly as possible. He testified: “Shortly prior to May 1, 1899,1 had a talk with Mr. Espey about being transferred; he said I could make a change and he made provision to move my household goods to the Calumet Drawbridge, 127th and Torrence avenue. * * * There was a small

interlocking tower and a drawbridge over the Calumet river. There were different classes of traffic up and down the river, pleasure boats, government boats, and boats loaded with lumber. I opened the derails connected with the interlocking tower, connected with the drawbridge, and then we had to swing open the bridge and let the boats through. Mr. Espey, before I went to the bridge, gave me instructions with reference to my duties at this bridge, that I was to be on duty 24 hours in the day. I was not living on the railroad’s premises before I went to this bridge. I understand Mr. Espey made arrangements with the superintendent to move me. He furnished an engine and car and a crew to go with the engine. The goods were moved from an express wagon to the car, and the section men unloaded them at this house, which is about 50 feet south of the tower at the river, and about 8 feet from the tracks and on the right of way. It was a small two story house; two sleeping rooms and a front room up stairs, and a small kitchen, dining-room and pantry in the basement. Nothing was ever said about my paying any rent, and no rent was ever paid. It took two men to turn the bridge, the night man and the day man. I would get the signal to go to the bridge by an electric bell operated by a crank generator and push button from the tower to the house. There were two houses occupied by the bridge men.”

Mr. Richason also testified, “I reported to Mr. Espey while I worked at the bridge, and received orders from him. He was signal engineer, office at Dear-born station. He had charge of the signals at the bridge and hired and discharged the men in my department.

When I moved the freight car was set at 87th street, about half a mile from where I lived. I hired a dray to take my goods over to the car. I had been out to this Calumet bridge several times before I moved there, and my wife had been there once.”

Mr. Espey, called as a witness for the defendant, testified: “I transferred Richason from Hammond

Junction to the draw bridge and made arrangements with the superintendent to have his household goods transferred. * * * When I assumed charge of the signal department, Richason was working for the Western Indiana Road. Richason was subject to call at any time. He was under my supervision and subject to discharge by me at any time. He was expected to be on watch or at the house practically during the 24 hours of the day during the months when navigation was open on the river. He was expected to be there so he could help turn the bridge. During the time Bichasen lived there, the company did not exercise any control over the interior of the house that I know of. I had ho control over the buildings of the company other than the bridges or tower houses. My control extended more particularly to signal appliances. Bepairs to buildings were made by men under my supervision.”

The contention of the appellee on this evidence is that the occupancy of the house in question by Bichason was occupancy by the compány. The building was a part of the appurtenances of the road, and in it the company undertook to shelter Bichason and his family, so that he could better perform his duties. It therefore owed his daughter Hazel the duty of providing a reasonably safe place, considering her age. So runs the argument of the appellee.

In the view which we take of this case, we do not consider it necessary to pass on the question whether the appellee is accurate in this contention in regard to the nature of Bichason’s holding and of the appellant’s duty. It is controverted by the appellant, but we will assume, for the purposes of our discussion, that it is correct.

The question then follows: Did the defendant, appellant, provide a reasonably safe place to Bichason and his family, including Hazel?

The appellee argues that it did not, because, as Mr. Bichason testified: “The house was about 18x24—3 rooms on the main floor. The main room was off a platform next to the tracks. There was a hole cut through the floor with a pair of stairs leading into the basement with a trap door on hinges, a ring in the trap door to lift it up and down and a chain connected with the trap door to hook it up against the side of the wall. This was in the front room upstairs. There was no railing around this hatchway. The door weighed 49 pounds and was 49x26 inches. The top thickness was maple and the bottom Georgia pine. It fitted in the hatchway very tight. * * * The trap door raised up to open it and would close itself if you let it down. It would stay open without using the chain. The door would sometimes bind so that it was hard to open. * * * I had nothing to make it loose with when it bound.”

The position that the house because of this condition of things was an unsafe and dangerous place for the plaintiff Hazel Bichason, is based on the fact that she was a girl between five and six years old, that her mother, Mrs. Bertha Bichason, was a woman who weighed but 83 pounds and found it very hard to lift this trap door from below when she wanted to come up the stairs from the cellar or basement, although, as she says, she did it, having occasion to go down cellar a good many times a day, until she nearly “ruined her health,” until she “could see it was hurting” her. She also testified that there was nothing preventing her from getting into the basement by going out of the front door, around the side of the house and into the basement from the outside. “But,” she said, “still I couldn’t go out in all kinds of weather and go around the house and down in the basement.”

It is insisted that because of this hardship or inconvenience which would result from keeping closed the trap door described, it was necessary for the defendant to assume that it would be justifiably left open. Indeed it is said the hasp on the wall showed that this was expected. If it were left open, the danger followed.

As a matter of fact, one child of Mr. Bichason had fallen through the door, and for that reason a request for and promise of a change had been made before the accident which is alleged to have crippled the plaintiff. It is argued that not only was a staircase like this with an open door at the head of it dangerous in itself, but that it was doubly so to children as an attractive and dangerous play place.

Here again, all that in the argument of plaintiff which is controverted may be assumed as accurate except the main proposition. But there is nothing in this evidence which shows us an unsafe construction. The normal state of a trap door is, to he closed, except when persons are passing through. When a mother who has small children takes the chance of leaving a trap door open, situated as this one was, it is she who makes the situation unsafe, not the construction. It may be, and probably was in this case, extremely inconvenient for her to avoid subjecting her family to this danger, but still it was but an inconvenience and not a necessity. It was a proper subject of complaint by the servant to the superior that he and his family were subjected to this inconvenience, and a proper subject for the superior to take up with a promise of change. But this does not make the construction dangerous nor the place appointed for the servant to live in itself dangerous.

For that reason, the promise of change, if in this case it was made by an authorized agent of the defendant, was of no importance to the issues in this case.

By promising to remedy an inconvenience, the master does not change the inconvenient construction into a dangerous one.

Because therefore we cannot hold that the Company is shown to have neglected any duty from it to the plaintiff, nor that it was negligent in any manner, we must reverse this judgment. The case should have been taken from the jury. The natural but unsafe action of the plaintiff’s mother, for which the defendant was not responsible, was the cause of the accident.

The judgment of the Circuit Court is reversed.

Reversed.