author: Mr. PresidiNg Justice Baldwin

text:
    Gustave A. Stahl et al., Appellees, v. Robert G. Stahl et al., Appellants.
    Gen. No. 15,880.
    1. Appeals and errors — when certificate of evidence not stricken. Beld, that the certificate of evidence should not be stricken where it appeared that the evidence contained therein was before the master and the court and considered by them and likewise is extensively quoted on appeal by the party moving to strike.
    2. Subrogation — who not entitled to. Subrogation will not be granted in favor of one who shows no contract to support the claim and there are no special conditions which require that a court of equity should recognize such claim.
    3. Trusts — propriety of allowance of solicitors’ fees out of fund. It is proper to allow out of a trust fund before distribution fees for legal services in establishing and preserving the trust.
    4. Masters in chancery — when allowance of fees proper. Beld, in this case, that the allowance of master’s fees to the amount of $450 is proper, and within the statute.
    Partition. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 28, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. Tbis appeal brings before ns for review a decree of tbe Superior Court of Cook county, entered July 12, 1909, ordering a partition of certain premises, (wbicb are known as No. 15 Blue Island avenue, Chicago), as prayed for in tbe bill, and dismissing for want of equity, a cross-bill filed by one of tbe defendants, Prank A. Stabl.
    On August 18, 1900, Fredericka'L. Stabl, tbe mother of most of tbe parties to this litigation, conveyed tbe real estate in question to her son, Frank A. Stahl (cross-complainant) by warranty deed. She died February 11, 1901. On the 5th of September, 1902, Frank A. Stahl conveyed the premises by warranty deed to his brother, John Stahl.
    November 2,1903, Gustave A. Stahl, another brother, filed a bill in the Superior Court, making defendants therein all his brothers and sisters and the tenants of the premises in question. This bill averred that Fred-ericka L. Stahl died intestate, leaving her surviving as her only heirs at law, Emma 0. Haas, Robert G. Stahl, Louisa F. Righeimer, Frederick W. Stahl, Frank A. Stahl, John Stahl, and the complainant, Gustave A. Stahl.
    It further averred that the estate of Fredericka L. Stahl had never been administered. It set out the two deeds mentioned and sought to have them both set aside upon the ground that they were fraudulent as against the other children, and asked for an accounting, averring that Fredericka L. Stahl was induced to execute the first deed by her son, Frank A., while she was, in fact, under improper restraint and undue influence, in her dotage, and with her mind so impaired that she was incapable of comprehending the effect of the deed, —and that the second deed was without consideration and accepted with notice and in fraud of the rights of complainant.
    Louisa F. Righeimer, a sister, became a co-complainant with her brother, Gustave A. Stahl. Answers were filed by Frank A., John and Frederick W. Stahl, and Emma 0. Haas, in which they denied the allegations of fraud and undue influence. The bill was subsequently so amended as to charge that the conveyance was inequitably made by the mother to Frank A. Stahl, without any consideration, and was, in effect, made in trust for the benefit of the heirs of said Fredericka L. Stahl.

      Upon a hearing, the court dismissed the bill on July 21, 1904, for want of equity, npon the ground that, though the court found the property was deeded to and held by the defendants, Frank A. and John Stahl, under an express parol agreement for the benefit of the heirs of Fredericka L. Stahl, yet as the Statute of Frauds had been pleaded, and as there was no writing to manifest the existence of such trust, said Statute of Frauds was an absolute bar to the proceeding.
    On February 21, 1905, this decree was reversed by the Supreme Court (Stahl v. Stahl, 214 Ill. 131), that court holding, in substance, that the children of Freder-icka L. Stahl were the equitable and beneficial owners of the property. The cause was remanded, and another decree was entered by Judge Kavanagh of the Superior Court April 11, 1905, in which it was provided that the court retain jurisdiction of the cause for the purpose of administering the trust estate, etc. This last decree was reversed by the Supreme Court (Stahl v. Stahl, 220 Ill. 188), and the court below was directed to enter a decree, embodying the conclusion of the Supreme Court, that the conveyances were constructively fraudulent and were, in equity, in trust for the benefit of all the children of Fredericka 'L. Stahl, and that each of said children had been, since the conveyance to Frank A. Stahl, the equitable owner of and entitled to the rent, income and profits of an undivided one-seventh part of the property in question, and requiring John Stahl to convey to each of the children, other than himself, an undivided one-seventh part thereof. Upon the mandate of the Supreme Court being filed, Judge Gary, in the Superior Court, entered a decree on March 27, 1906, in conformity therewith, and the bill was amended to pray for a partition of the real estate,
    February 27, 1905, Emma O. Haas, one of the defendants in the original bill, filed a bill in the Circuit Court, praying for a partition of the property in question. This bill the Circuit Court dismissed, holding that the Superior Court had first obtained jurisdiction of the parties and of the subject-matter. This action was affirmed by the Supreme Court. (Haas v. Righeimer, 220 Ill. 193.)
    On the 23rd of February, 1905, Frederick W. Stahl w^s appointed administrator of his mother’s estate, and there were allowed in Probate Court the claims of Frank A. Stahl, John Stahl, and Emma 0. Haas, for large amounts. The administrator filed a petition to sell the real estate in question to pay debts. This petition was dismissed by the Probate Court for want of jurisdiction, and upon appeal, the Supreme Court approved the action of the Probate Court in dismissing the' petition. (In re Estate of Fredericka L. Stahl, Deed., 227 Ill. 529.)
    On the 27th of March, 1906, G-ustave A. Stahl filed a verified petition in the original suit, alleging that on October 18, 1904, he had transferred his interest in the premises to Morse Ives, Esq., as security on account of service rendered and to be rendered in the cause; that on May 13, 1905, he had conveyed the remaining interest in the property to his wife, Emma M. Stahl, and praying that a conveyance be made to her of the share otherwise coming to him, subject to the rights of Ives. Emma M. Stahl and Morse Ives both appeared and were, on that date, substituted as complainants in lieu of Gustave A. Stahl. The bill was, at that time, amended to show, among other things, that one Hugo Munzer claimed the ownership of a one-seventh interest in the property, by reason of bankruptcy proceedings in the matter of Robert G. Stahl, bankrupt, in which Munzer claims to have purchased from the trustee in bankruptcy, the interest of said Robert G. Stahl to the premises in question.
    The amendment further averred that the records of Cook county showed a trust deed, purporting to secure a note of Fredericka L. Stahl for $5,000, and alleging that the indebtedness secured thereby had been fully paid; that, in fact, the indebtedness was that of Frank A. Stahl, and that the trust deed and note were executed for his benefit, and that he was primarily obligated to pay said indebtedness, which he had done on August 2, 1902, on which date the Northern Trust Company, trustee, executed and delivered to him a release of said trust deed, but that such release had never been recorded. By the amendment, it further appeared that Frederick W. Stahl, as administrator of the estate of Fredericka L. Stahl, claimed an interest in the real estate in question, — that is, the right to sell it for the benefit of certain alleged creditors, to-wit, Frank A. Stahl, John Stahl and Emma 0. Haas.
    The amendment further averred that complainants, Gustave A. Stahl and Louisa F. Bigheimer, had expended large sums and incurred obligations for costs, disbursements, and solicitor’s fees, to the amount of $4,000, in and about establishing the right of the parties in and about the cause in and to the property as a trust estate, and averred that said amount should be a just charge or lien upon the premises, to be first paid from the proceeds of any sale thereof, and prayed that an account might be taken of the expenses and obligations for costs, etc., incurred and to be incurred by the complainants in and about obtaining the relief prayed for, and that a partition of the property might be made.
    On the 11th of April, 1906, answers were filed by all the defendants, except the Northern Trust Company, which had been made a party defendant and was subse - quently defaulted, and except Frederick W. Stahl, administrator, who had been made a party and who answered later.
    The answer of Frank A. Stahl and his cross-bill, filed October 27, 1906, did not admit that Hugo Munzer had any interest in the premises, but insisted that if he had any, it was subject to the claim of Frank A. Stahl against Robert C. Stahl for $200; admitted the trust deed for $5,000 to the Northern Trust Company, and that the indebtedness and note secured thereby had been paid by Frank A. Stahl, but denied that the indebtedness was his own, or that the trust deed and note were executed for his benefit, or that he was under obligation to pay the indebtedness; admitted its payment and claimed that at the death of his mother on the 11th of February, 1901, he was in no way indebted or obligated to her, but that on the contrary, she was heavily indebted to him; that on August 2,1897, he was not indebted to her at all.
    The amended bill (designated in this record as “engrossed bill”) was answered by Hugo Munzer, who admitted its allegations, except those averring that defendants were entitled to solicitor’s fees for the establishing of a trust estate.
    Defendants, Frank A. Stahl, John Stahl, Robert G-. Stahl, Frederick W. Stahl, Emma O. Haas, and John F. Haas, filed answers consenting to a partition and accounting, but insisting that it should be subject to the. payment of a claim of Frank A. Stahl for $5,000, plus accrued interest thereon, which had been paid by him to secure a release of the trust deed of the Northern Trust Company, on account of which Frank A. Stahl claimed to be equitably entitled to be subrogated to the rights of the Trust Company; also that the partition and accounting must be subject to the payment of the debts of the deceased, Fredericka L. Stahl, and to the claims of the creditors of any of the parties, and denying the right of Morse Ives, Esq., to the solicitor’s fee claimed by him. The administrator, Frederick W. Stahl, answered, setting up the allowance of claims in favor of Frank A. Stahl, aggregating $4,489.25, John Stahl $4,125, and the additional claim of Frank A. Stahl, amounting to $7,596.43, for the payment of a note executed by the deceased, August 2, 1897, for $5,000, with interest thereon, already allowed in the Probate Court, and insisting that any partition or accounting must be subject to the payment of the debts of the deceased.
    October 27,1906, Frank A. Stahl filed a cross-bill, alleging that he was not obligated to pay $5,000, but that on August 1, 1899, at the request of his mother, he paid the sum of $3,500 thereon, with the express understanding that he was to be subrogated to the rights of the Northern Trust Company, the then holder and owner of the $5,000 note and interest notes, and to its rights of foreclosure; that after the death of his mother, and believing himself to be the owner of the premises by virtue of her deed to him, dated August 18, 1900, he paid the remaining $1,500, on August 2, 1902, with interest; that his claim-, therefor, aggregating $7,596.43, was allowed hy the Probate Court against the estate of his mother, for which amount he prayed a foreclosure of the property in question; and he further averred that John Stahl recognized his claim upon the premises as a valid and subsisting lien.
    By amendment, he alleged the insolvency of Gustave A. Stahl, Emma M. Stahl, and Louisa F. Righeimer, and prayed that the conveyance to Morse Ives and Emma M. Stahl be declared subject to the payment of the debts of Gustave A. and Emma M. Stahl.
    The allegations of the cross-bill were confessed by all the defendants excepting Gustave A. Stahl, who disclaimed, and excepting also, Morse Ives, Emma M. Stahl, Louisa F. Righeimer, and Hugo Munzer, all of whom denied its allegations and insisted in addition that the cross-bill was multifarious, and not germane.
    The cause was then referred to a master in chancery, who filed his report on July 24,1908.
    This report included an accounting, which showed a balance of $443.93, due from Frank A. Stahl, on account of rents collected by him, after allowing his commissions therefor, and showed due from John Stahl, $1,234.79, rents collected, after allowing his commissions therefor. The report also found that Morse Ives, solicitor, was entitled to solicitor’s fees for impressing a trust upon tlie property, and that said fee should he sixteen per cent, of the value of the trust estate.
    As to the cross-hill, he found that in August, 1892, Fredericka L. Stahl borrowed the sum of $10,000 from the Northern Trust Company, which sum she gave to Frank A. Stahl, and which he used; that this loan was reduced by the payment of $4,000, prior to August 2, 1897, at which time a new loan was made by the Trust Company to her for the unpaid $6,000; that on August 2, 1897, she made a trust deed to the Trust Company, as trustee, to secure two notes, one for $1,000 and the other for $5,000, with interest at five and one-half per cent, conveying the property in question; that this $6,-000 was paid by Frank A. Stahl, to whom the Trust Company delivered a release on August 4, 1902.
    The master further found that the conveyance by warranty deed from Fredericka L. Stahl to Frank A. Stahl, which had theretofore been declared constructively fraudulent, was executed and delivered on August 18, 1900; that Fredericka L. Stahl died February 11, 1901; that the notes which were secured by the trust deed were paid in full on August 2, 1902; that Frank A. Stahl transferred the premises to his brother, John Stahl, on September 5, 1902; that on the trial before Judge Kavanagh, Frank A. Stahl had stated that he transferred his interest to his brother John Stahl, and that he then had no claim at all against the property, though now contending that during all of that time he had a claim against the premises for $6,000, and was entitled to be subrogated to the rights of the Northern Trust Company as trustee; that from August 2, 1902, until October 27, 1906, Frank A. Stahl made no attempt to assert his right to subrogation, although having in his possession the release deed which had never been filed; that said Frank A. Stahl contended he had a right to be subrogated because of an oral agreement between bis mother and himself, whereby she was to assume the payment of the notes secured by said trust deed, amounting to $6,000, although he was in fact the original debtor,' the money having been given to him; that such alleged oral agreement between himself and his mother was made on account of alleged payments made by him to his brother, Gustave A. Stahl, at the request of his mother; that because of the numerous conflicting statements by Frank A. Stahl in his testimony, the master did not regard his evidence as entitled to much consideration; and accordingly the master found that the cross-complainant, Frank A. Stahl, was not entitled to be subrogated.
    The master further found that cross-complainants, Frank A. Stahl, John Stahl and John F. Haas, introduced evidence to support certain individual claims against other parties to the suit, but that the court had no jurisdiction, in this proceeding, to pass upon claims of that character.
    The master further found the respective interests of the parties to the suit in the trust property to be as follows: Emma Madeline Stahl (subject to the rights of Morse Ives), Frank A. Stahl, Frederick W. Stahl, Emma 0. Haas, Louisa F. Righeimer, John Stahl, and Hugo Munzer, each entitled to one-seventh. The master found the material allegations of the bill proven, and recommended a decree in accordance therewith; and he further recommended thajt the cross-bill of Frank A. Stahl be dismissed, and that he be required to record the release deed in question.
    To this report numerous objections were filed (which objections were allowed to stand as exceptions) and were heard and overruled by the court below on the 12th day of July, 1909, and there was then entered a decree in conformity with the master’s report, requiring Dr. Frank A. Stahl to pay to the trust estate the sum of $443.93, John Stahl the sum of $1,234.79, and Emma O. Haas the sum of $553.50 for rent of the premises down to the 27th day of March, 1906, and requiring her to account to herself as receiver of the premises, at the rate of $9 per month, from said last date to the date of the decree; directing the payment of solicitor’s fees in the amount of sixteen per cent of the value of the trust estate to Morse Ives, solicitor for complainants, for establishing the trust; finding that cross-complainant, Dr. Frank A. Stahl, paid out the money set forth in his cross-hill and testimony, but that such sums were not advanced under any contract upon which a lien upon the premises can arise,' and dismissing the cross-hill for want of equity, and directing him to forthwith file for record the said release deed; decreeing the respective interests of the parties in the trust property to he found by the master, and directing a partition of the premises to he made in conformity therewith, and appointing commissioners to make said partition, etc.
    Appellants insist, first, that the court below erred in not granting the relief prayed for in the cross-hill of Frank A. Stahl; second, that the court below erroneously allowed Morse Ives, solicitor for the complainants, solicitor’s fees to he paid out of the proceeds of the property; third, that the court erred in failing to find that the various parties to the suit are entitled upon the accounting, “to receive the amounts of the respective claims by certain of the appellants, as against the other parties entitled under the decree of this court to a share of the proceeds of the property described iu the bill of complaint herein;” fourth, that the court below erred in failing to make Louisa F. Eigheimer account for rent moneys and receipts appropriated by her; fifth, that the fees allowed the master in chancery are excessive and unreasonable; sixth, that the court erred in assessing the sum of $360 as costs against Frank A. Stahl, and the sum of $90 as costs against the defendants to the amended bill, who did not disclaim.

      HeNry Eussell Platt and John Frederick Haas, for appellants.
    Morse Ives and Carey W. Bhodes, for appellees.
   Mr. PresidiNg Justice Baldwin

delivered tlie opinion of the court.

Shortly after their appeal was perfected, appellants made a motion to strike from the files the certificate of evidence, showing the testimony given on the trial before Judge Kavanagh in July, 1904. This motion this court denied on December 10, 1909; but it is now renewed by the appellants, who contend that the evidence is not properly a part of the record, and should not be considered by this court; however, it appears that appellants, in their briefs and arguments, themselves extensively quote from it; and it also appears that the master had it before him and considered it in making up his report. After due consideration of the motion, we feel compelled to again deny it.

The first and most important question brought before us by this appeal, is whether the court erred in refusing to grant relief upon the cross-bill filed by Dr. Frank A. Stahl, and in dismissing it for want of equity.

After a careful consideration of all the testimony in the case, we have reached the conclusion that there is no adequate justification in the record for a reversal of the decree of the court below. The claim of Frank A. Stahl rests almost exclusively upon his own testimony; the master expressly found that there was nothing else upon which it could be based. His testimony given in this case, if taken by itself, might easily warrant the court in granting the relief prayed for; but, if as held by the master and the court below, he had so far discredited himself by previous contradictory and inconsistent statements and contentions, as to neutralize and destroy the effect of his testimony upon the hearing, he has no one to blame but himself.

When this hill was first filed and a hearing was had upon it before Judge Kavanagh in July, 1904, Dr. Frank A. Stahl and John Stahl respectively were endeavoring to substantiate their claims of ownership of the premises in question. Dr. Frank A. Stahl claimed that his mother had conveyed it to him in satisfaction of his claims against her, and that by the conveyance he became its absolute owner, free from any claims on the part of any of his brothers or sisters. It was also claimed by him and John that by his conveyance to John, the latter acquired an indefeasible title to the property in question, free from all claims of the other heirs. Upon that hearing, the court found that the contentions of both Dr. Frank A. and John Stahl were not substantiated, but were false; that the deed from the mother, was as claimed in the bill, actually in trust for the benefit of all her children, and Judge Kavanagh so decreed. In this finding the Supreme Court concurred, its decision being rendered on the 21st day of February, 1905. Within two days thereafter Frederick W. Stahl, one of the defendants in the proceeding, was appointed administrator of his mother’s estate, and it appears that while he was such administrator, there were allowed ex parte in the Probate Court, claims in behalf of appellants, aggregating about $18,-000, to pay which he endeavored to sell the premises in question. From an order of the Probate Court, dismissing his petition to sell the real estate, he appealed to the Supreme Court, where that action was affirmed. In the meantime, this cross-bill by Dr. Frank A. Stahl was filed, and all the appellants confessed its allegations to be true.

Waiving the questions that are raised by appellees here of merger of title in Frank A. Stahl; of estoppel (because of his warranty deed to John) to assert here a right of subrogation; and that by contesting complainants’ rights upon the ground of alleged ownership of the premises, he is precluded from his claim here by having elected his remedy; and that the subject-matter of his cross-bill is res adjudicata ;• — none of which do we decide, — we think the testimony in the case justifies the conclusion of the master and the court below.

The testimony of Frank A. and John Stahl given upon the hearing before Judge Kavanagh, and of Frank A. Stahl before Referee Wean, is so directly opposed to their present contentions as to challenge their right to be believed. While Frank A. Stahl is now claiming that he has an unsatisfied claim against the property for $7,596.43, growing out of an alleged agreement between his mother and himself, which he insists constituted a lien upon it, he and John then testified to a state of facts utterly inconsistent with such claim. Upon being recalled to the witness stand in the hearing before Judge Kavanagh, in July, 1904, and questioned by the court, Frank A. Stahl testified as follows:

“Q. Doctor, who owns that property now? A. My brother John.
Q. You have no claim upon it at all? A. No, sir.
Q. And was any agreement ever made between you and your brother as to your having any interest in it? A. No interest in it, absolutely.
Q. There is no paper in existence now of any character, showing you or anyone else having any interest in that property? A. No, John; he is the only one that has any interest, John.”

Upon the same hearing, the court examined John Stahl, who testified as follows:

“Q. Now if you were to sell it, you would put the money in your own pocket? A. I certainly should.
Q. You wouldn’t give him anything? A. It all depends.
Q. You would keep it all yourself? A. I would keep it all myself.
Q. Was there any understanding that you are to divide up or have any interest in that property between each other? A. Not a one.
“There is no understanding at all, in writing, of any character. It is absolutely my property without any condition at all attached. I have made no promise that I will at any time deed that property to him.
Q. Now so that there will be no mistake about it: That property was given to you by your own brother, was it? A. Yes.
Q. Without any condition of any character? A. There was no condition attached to it at all. He says, ‘John,’ he says, ‘I give you this property, iconvey it to you, it is yours’. Frank was going to Europe at that time. He did not go. I still have title to that property. I have collected the rents and I have put them to my own account. I have not given him any, not a cent. ’ ’

And while the record in this case established beyond controversy that the doctor paid $4,000 of the $10,-000 encumbrance in 1897, $1,000 in 1898, and $3,500 in 1899, and $1,500 in 1902, yet, when testifying before Eeferee Wean in June, 1905, Frank A. Stahl’s testimony was shifty, equivocal, and utterly lacking in candor; he said:

“I don’t remember when I paid any money last to the Northern Trust Company. It might have been in 1§92, it might have been in 1893, it might have been in 1894, it might have been in 1895. I don’t remember testifying when I was here before that the remaining portion of that $10,000 encumbrance was paid off by me. I don’t know what the fact is in regard to that.
Q. You don’t know whether it has been paid or not? A. I don’t know now, no, sir.
Q. And yet you don’t remember whether the notes were paid off at the bank or not? A. No, sir, not just now. You asked me for the exact date, and I don’t remember it.
Q. I say any date, Doctor, do you remember of those notes being paid off? A. No, sir.
Q. Will you say they were not paid off? A. No, sir.
Q. The balance of the encumbrance in 1897, after yon paid off the first portion of it, was how much? A. I don’t remember.
Q. Abont how much? A. That I don’t know.
Q. Do yon have any recollection at all? Á. Not just at present, no, sir.
Q. Don’t yon know that it was $6,000? A. No, sir.
Q. Don’t yon know that yon said when yon were here on the stand before that it was $6,000? A. If I did it is possible that I remembered it at that time; bnt I don’t remember it now.
Q. Yon remembered it three weeks ago when yon were here, and yon don’t remember it now? A. I don’t know.
Q. Do yon know, doctor, whether that encumbrance was reduced in amonnt in 1897 ? A. My recollection is now, yes, sir.
Q. How much? A. I don’t know.
Q. Abont how much? A. I don’t know.
Q. Have yon any recollection in regard to it? If so what is the recollection? A. My recollection is that there was a redaction in the amonnt, and — that there was a certain amonnt of money borrowed in order to supply funds to pay for my brother’s education in Europe.
Q. I didn’t ask you about that? A. But you are asking me practically to refresh my memory.
Q. I am asking yon if yon recall the amonnt of the reduction. A. No, sir.
Q. Was it as much as one thousand dollars? A. I don’t remember.
Q. Will yon state now that you don’t know whether it was as much as $1,000 or not? A. Yes, sir.
Q. Do you know, Doctor, whether any amonnt had been paid on that encumbrance since the title got into your name in 1900? A. What encumbrance have yon reference to?
Q. The only encumbrance we are talking about. A. Well, if you define it, if you please, I will try to answer to the best of my ability.
Q. Do you know of any encumbrance on the property at 15 Blue Island avenue ever having been paid in whole or in part after the 18th day of August, 19001 A. I don’t remember.
Q. Will you say, Doctor, that you don’t remember ever having paid anything on that encumbrance after the.title got into your name! A. I don’t remember now, no, sir.
Q. Have you remembered at any time? A. I don’t remember. I don’t remember, sir.
0. What is your recollection? What has happened? Is there anything that you can place why it is that your recollection is not as good today as it was when you first testified here? A. I suppose — I would not answer. What I mean by that is I have no explanation to offer. I don’t know.
Q. You cannot explain why it is you then remembered and not now? A. I don’t know.”

In this very proceeding, Frank A. Stahl testified before the master in 1907, with reference to the payments made by him on the indebtedness to the Northern Trust Company:

“I always held this $5,000 indebtedness against her. That was one of the considerations for the conveyance of the property to me in 1900.
Q. Was that 'consideration mentioned at the time? A. Yes.”

Upon the hearing before Judge Kavanagh, he had testified that he could not think of any reason why she should favor him with reference to her property rather than her son John; that there was no difference between his relation to his mother and that of the other children; that Gustave, her youngest son in Europe, was her favorite. At that time, it is clear that he did not regard himself as holding any claim of indebtedness against his mother, for he says: “She wanted to give me a mortgage to secure us on her property, and I said ‘Mother, I don’t want any indebtedness; I am perfectly willing to give you my last cent, and you can have John’s also. Yon have done for ns all these years. Yon are welcome to every cent I have got.’ ”

Numerous other inconsistencies in the positions taken by Frank A. Stahl in the extended litigation over this property might be pointed ont, bnt it is 'sufficient to say, that in our opinion, he is so far discredited as to warrant the master and the court in holding that he had not sustained the averments of his cross-bill.

Even if it be granted that he was generous in aiding his mother and other members of the family, we do not think the testimony establishes any contract or even an understanding that he should be reimbursed for these ■ advances, nor any such a condition as would justify the court in holding that he was equitably entitled to be subrogated to the rights of the Trust Com-pány, as claimed by him. The fact that he had thus been generous to his mother and other members of the family undoubtedly brought its reward in the satisfaction which such conduct brings, but it does not establish a right to the lien claimed by him.

Appellants also contend that the court erred in holding that they were not entitled in this proceeding to enforce their alleged claims against Gustave Stahl and Emma M., his wife, and others found by the decree en • titled to share the proceeds of the property. Among these claims thus sought to be enforced, was one by Dr. Frank A. Stahl against his sister, Mrs. Eigheimer, for medical services; another was his claim against Gustave and his present wife, Emma M. Stahl, upon their promissory note; another was his claim against Robert G. Stahl for medical services rendered to his deceased wife, and claiming that Hugo Munzer, as as-signee in bankruptcy of Robert G. Stahl, should receive his interest in the property subject to this claim; John Stahl also had certain claims against Gustave and Emma, his wife, also against Robert G. Stahl for money advanced. We are unable to sustain these contentions. We know of no theory of law which would warrant the trial court in requiring a settlement of the individual claims of these parties, one against another, or claims of any of the children against their mother, which did not arise as rent, or were in some other manner connected with the real estate in question.

Appellants contend that the court erred in allowing solicitor’s fees to be paid to Morse Ives out of the proceeds of the sale of the trust estate. There is no question made as to the correctness of the amount; indeed, that is agreed upon, the contest being only as to whether or not any compensation is permissible out of the proceeds of the sale for Ives’ services in establishing and preserving the trust estate.

Appellees have maintained throughout that this was a trust estate. The premises were claimed by Frank A. Stahl and John Stahl, and their assertion of title to it made the services of attorneys necessary to secure an adjudication that it was in fact a trust estate; such adjudication having been made, there should be an allowance of reasonable solicitor’s fees to be paid out of the fund, and before it is divided among those entitled to it. Abend v. Endowment Fund Commission, 174 Ill. 96; Chick v. Northwestern Shoe Co., 118 Fed. 933; White v. University Land Co., 49 Mo. App. 450; Trustees v. Greenough, 105 U. S. 527.

Appellants object to the amount of the fees allowed the master, and also object to the distribution of such fees. The total fee allowed was $450, and of this amount $360 was taxed against Frank A. Stahl. By the act of 1907 it was provided that in Cook county masters might receive as a “fee for examining questions in issue referred to them, and reporting conclusions thereon, * * * such compensation as the court may deem just.” In view of the testimony of the master as to the character and extent of the services thus rendered by him, and of what the record discloses as to the mass and complexity of the litigation, we cannot say that the court erred in allowing the amount; and in view of the conflicting positions taken by cross-complainant Frank A. Stahl, and the contradictory evidence offered by him in various phases of the litigation, and the necessarily large record which was thereby caused, we can-tradictions, as are disclosed by this record, it may be the amount to be charged against him.

While in a case involving such complications and contradictions, as are dislosed by this record, it may be difficult for the parties to believe that they have been justly dealt with, we are of the opinion that in the record before us there is no substantial error, and the decree will, therefore, be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    Jane Sherry, Appellee, v. Women’s Catholic Order of Foresters, Appellant.
    Gen. No. 15,960.
    1. Fraternal benefit societies — what constitutes charter. The charter of a fraternal benefit society is the certificate of organization granted by the state and the statutes of the state which provide for the organization of such societies and which define their powers.
    2. Fraternal benefit societies — when admission of member ultra vires. If the charter of a fraternal benefit society prohibits the admission as a member of a person over the age of fifty years the admission of such a member is ultra vires. If, however, the prohibition be contained in a by-law of a society such by-law may be waived by the acceptance of dues.
    3. Fraternal benefit societies — when estoppel does not preclude defense of disqualifying age. The doctrine of estoppel does not preclude the defense that a member at the time of admission was not of qualifying age if the disqualification results from the charter rather than from the by-laws of the society.
    Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed November 28, 1911.
    Rehearing denied December 12, 1911.

      A. H. Easter, for appellant; J. Ambrose GeaboN, of eonnsel.
    George F. Talty, for appellee.
   Mr. Justice Clark

delivered tlie opinion of the court.

The appellant is a fraternal benefit organization, created a corporation under the laws of Illinois. Ellen Sherry, the mother of the plaintiff, on November 30, 1904, applied for membership and presented to Morning- Star Court No. 239 (a subordinate lodge of the Order) her written application in which she stated that she was born in Ireland on March 18, 1856. The application card was not signed by her, but was filled out by the examining physician at her request. In the application she designated Patrick Sherry, her husband, as her sole beneficiary. On December 12, 1904, Ellen Sherry was initiated a member of the Order in Morning Star Court.

The recording secretary testified that when she took the card from Mrs. Sherry that the latter told her to change the application so that the application card on the reverse side was made to read:

“Mrs. Ellen Sherry, Benefit payable to one thousand to Jane Sherry and one thousand to Patrick Sherry. Related as daughter and husband. Initiated Dec. 12th, 1904. Roll No. 153.
Nellie Flanagan,
Secretary. ’ *

Mrs. Sherry died a few days after her initiation. Proofs of her death were furnished the organization, and upon its refusal to pay the appellee, Jane Sherry, appellant was sued by her for the amount claimed to be due under the certificate, namely, $1,000, and interest thereon. A trial was had before the court and a jury, and a verdict for $1,200 was rendered in favor of the appellee. A remittitur of $200 was entered and judgment rendered on the verdict for $1,000. This judgment we are now asked to reverse. .

The first and, as we regard it, the principal question involved in the case is the question of fact as to whether or not Ellen Sherry at the time she was made á member of the organization was more than fifty years of age.

In this state the charter or organic law of an association like that of the appellant is held to he the certificate of organization granted to it by the state, and the statutes of the state which provide for the organization of such associations and which define their powers (Wood v. Mystic Circle, 212 Ill. 532; Steele v. Fraternal Tribunes, 215 Ill. 190). Properly authenticated copies of the documents which constituted the charter or organic law of appellant were introduced in evidence, and these show conclusively that under that charter no applicant could properly be received who was more than fifty years of age. In the two cases cited a distinction is made in this respect: that where a provision is incorporated in a by-law of the association, even though that by-law be designated as part of the constitution, it may be waived by the organization, and that the acceptance of dues from a member constituted such a waiver; hut that where, as in the present case, the provision is in the articles of incorporation it is ultra vires the corporation to accept a person over the age limit as a member, and the organization cannot be bound even though some of the officers of the local lodge or the main body knew that the representations as to age were false.

We do not find in the record any testimony offered by the appellee as to the age of Mrs. Sherry at the time she became a member of the appellant organization. Testimony was introduced by the appellant as to the age of some of her children, which tends very strongly to show that she was more than fifty years of age at the time she made her application. The appellant also introduced in evidence a certified copy of a record in tlie Public Record Office of Ireland, entitled “A Census Return,” which tends to show that on March 30, 1851, one- Ellen Riordon (claimed to have been the maiden name of Mrs. Ellen Sherry) was five years of age. If this record is to be believed, and the Ellen Riordon named therein is the same person who under the name of Ellen Sherry made the 'application for the certificate in question, on which there is some proof, it would strongly tend to prove that she was upwards of fifty-eight years of age at the time she made the application.

The plaintiff was herself placed upon the stand to testify to certain facts, and it seems somewhat extraordinary that no effort was made to show by her about what age her mother was in 1904.

We think that the court should have granted the motion for a new trial on the ground that the verdict was against the clear weight of the evidence.

The court gave at the request of the plaintiff the following instruction to the jury:

“The court instructs the jury that if it believes from the evidence that the defendant or its subordinate court, required proofs of death to be delivered to it, following the death of the plaintiff’s mother, and further believe from the evidence, that such proofs were delivered to the defendant in accordance with its constitution and by-laws, and further believe, from the evidence, that at such time, the defendant had knowledge of the alleged falsity of any statements questioned in this proceeding, then it is for the jury to determine from the evidence whether there was a waiver on the part of such defendant of any such alleged false statements or representations, if you believe from the evidence that any were made.”

This instruction was improper. For reasons heretofore stated, which reasons are more fully set.forth in Steele v. Fraternal Tribunes, supra, the provision as to age, being part of tlie organic law of the organization, may not be waived by the organization. In such circumstances the corporation is not estopped from raising the defense of ultra vires.

The court was asked by the appellant to instruct the jury that every statement made in the application constituted a warranty by Ellen Sherry, and that if the jury found that any statement was not true, then their verdict should be for the appellant. We do not think the court erred in refusing to give this instruction. Supreme Council v. Beggs, 110 Ill. App. 139.

It is further alleged by the appellant that if the appellant is bound at all it is bound only to Patrick Sherry, as his name was the only one mentioned in the certificate. We do not think so. It appears, that at the request of Ellen Sherry a certificate was to be made out jointly to her daughter, the appellee, and her husband, Patrick Sherry, and this was done in accordance with the usual and customary manner of transacting business of that nature. Nowak v. Murray, 127 Ill. App. 125, 130.

For the reasons stated, the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Me. Justice Claeti

text:
    Chicago Coated Board Company, Appellant, v. Theodore Bear et al., Appellees.
    Gen. No. 15,847.

      CORPORATIONs — when directors personally liable. If directors assume to exercise corporate powers of a de facto corporation before all of the stock named in the articles of incorporation has been subscribed in good faith, they are personally liable for the debts thereof.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Eeversed and remanded.
    Opinion filed November 28, 1911.
    McCabe & Cloyes, for appellant.
    No appearance for appellees.
   Me. Justice Claeti

delivered the opinion of the court.

Suit was brought by the appellant against the appel-lees, Theodore Bear, Jnlins N. Heldman and Max I. ITeldman, for the value of certain goods delivered to a de fado corporation known as the Hnion Folding Box Company, it being alleged that the three appellees constituted the board of directors and assumed to exercise corporate powers or use the name of said corporation before all of the stock named in the articles ox incorporation had been subscribed for in good faith, thus rendering themselves liable under section 18 of chapter 32 of the Revised Statutes.

The capital stock of the company was fixed at $5-,000, divided into 50 shares of $100 each. Of these shares Morris M. Herriman subscribed for 48; Theodore Bear, 1 share; and Julius N. Heldman, 1 share.

The case was tried before the court and a jury, and at the close of the plaintiff’s case an instruction was tendered by the appellees and given by the court directing the jury to find a.verdict in favor of the appellees, who were the defendants below. Judgment was rendered upon this verdict, and from it this appeal is taken. No brief has been filed in this court by appel-lees.

The testimony introduced at the trial was that of Morris M. Herriman and the three appellees, Theodore Bear, Max I. Heldman and Julius N. Heldman. From this testimony it appears that Herriman was in business with one James W. Smalley in the manufacture of paper boxes; that Julius N. Heldman was an attorney and that through him an arrangement was made whereby appellee Bear, who was a brother-in-law of Heldman, should buy the interest of Smalley in the business, and that Herriman, Bear and Heldman should thereafter organize a corporation to carry on the business theretofore conducted by Smalley & Co. Negotiations were had and Smalley agreed to 'sell his interest in the company for $1,375, $250 to be paid in cash and the balance to be secured by a second mortgage. It does not clearly appear by whom the $250 were paid, but the mortgage seems to have been made, and after the attempted organization of the company the business of Smalley & Co. was turned over to the Hnion Folding Box Company as such de facto corporation.

From Herriman’s testimony it would appear that only 10 of the 48 shares of stock were issued to and kept by him as his own property. He testified that certificates for the remaining 38 shares were issued to him but were endorsed in blank by him and never taken out of the office; that all of his actions in the matter were pursuant to the directions of appellee Julius N. Heldman, who was acting as his attorney. The first three directors of the company were Bear, Julius N. Heldman and Herriman. Later on Herriman resigned as director, and appellee, Max I. Heldman, a brother of Julius N., was elected to take his place. It also appears quite clearly from Herriman’s testimnoy that he was not financially able to pay for the other shares of stock subscribed for by him, and that it was the understanding of all of the parties that he was to have a half interest in the stock of the company, but that the balance of this half interest, that is to say 15 shares of stock, was to be paid for out of the profits of the business.

It was admitted on the trial that there was a balance due the Chicago Coated Board Company for supplies and materials sold to the Union Folding Box Company from Jnne 8tli to July 1st, 1903, of $172.90. There was testimony tending to show that Bear, acting for the company and authorized in that respect by the other directors, namely, the appellees Max I. and Julius N. Heldman, ordered such goods and supplies.

It is unnecessary to refer in more detail to the testimony in the record. We are of the opinion that sufficient was shown to warrant the submission of the case to the jury upon the question as to whether or not the appellees assumed to exercise corporate powers of the de facto corporation, the Union Folding Box Company, before all the stock named in the articles of incorporation had been subscribed for in good faith. In other words, we think the charge of the court directing' a verdict in favor of the appellees was erroneous. Geo. M. Clark & Co. v. Kent, 80 Ill. App. 128; Lovering v. McLaughlin, 161 Ill. 417; Gunderson v. Illinois Trust & Savings Bank, 199 Ill. 422; Jersey City Gas Co. v. Dwight et al., 29 N. J. Eq. 242.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    David S. Dempster v. Killian V. R. Lansingh et al. V. R. Lansingh et al., Appellants, v. Sara B. Dempster et al., Appellees.
    Gen. No. 15,966.
    1. Abatement — what actions do not survive. A cause of action created by statute does not survive unless declared to do so by tbe statute itself or unless provision is made by some other statute for such survival.
    2. Abatement — what actions do not survive. A proceeding to assess damages upon tbe dissolution of an injunction, does not survive either in favor of the representatives of the party moving for the assessment or against the executors of the parties against whom the assessment is sought.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 28, 1911.
    Bobert F. Pettibone and William S. Freemaet, for appellants.
    CaNNON & Poage, for appellees; E. M. Ashcrapt, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

In this case it appears that David S. Dempster in his lifetime wrongfully instituted an action by bill in chancery against K. Y. B. Lansingh and others, and without ground therefor, wrongfully and without notice, procured a writ of injunction to be issued; that the bill was dismissed for want of equity by the Circuit Court, and that the decree so dismissing the bill has been affirmed by this court and by the Supreme Court of this state. It also appears that the injunction was dissolved in the lifetime of Lansingh and Dempster; that damages were assessed on suggestion by the Circuit Court; that the action of the Circuit Court was affirmed in this court (128 Ill. App. 388); that the judgment of this court was reversed by the Supreme Court (234 Ill. 381). Pending the appeal from the Appellate Court to the Supreme Court, Dempster died, and the appeal was prosecuted by his executors, who are appellees here. The Supreme Court found that the attorneys’ fees allowed were too large, and reversed this court and the Circuit Court on that ground. Before the case was reinstated in the Circuit Court Lan-singh died. His executors, the appellants here, made a motion in the Circuit Court, based upon affidavits, to be substituted as parties in place of Lansingh, deceased. The .chancellor held that the right to have damages assessed did not survive against the executors of Dempster or in favor of the executors of Lan-singli, and entered a decree in abatement.

By section 122 of chapter 3 of Revised Statutes it is provided that in addition to the actions which survive by the common law the following shall also survive : Actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property, or for the detention or conversion of personal property, and actions against officers for misfeasance, malfeasance or nonfeasance of themselves or their deputies, and all actions for fraud or deceit.

It is clear that the action for damages for the wrongful suing out of a writ of injunction does not come within any of the enumerated actions in this statute. It cannot be said to belong to that class of actions which survived by the common law, for the reason that at common law damages on the dissolution of an injunction were not recoverable. The only remedy, prior to the enactment of the statute hereinafter mentioned, to which the injured party could resort was his remedy on the bond given upon the obtaining of the injunction. Phelps et al. v. Foster et al., 18 Ill. 309; Gorton v. Brown, 27 Ill. 488.

In 1861, after the rendition of the foregoing decisions, the present statute was enacted. This statute provides that the court upon “the party claiming damages by reason of such injunction, suggesting in writing the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require and to equity appertain, to the party damnified by such injunction, and may award execution to 'Collect the same, provided a failure to so assess damages shall not operate as a bar to an action on the injunction bond.” This statute creates a new right, but there is nothing in it to indicate that it was the intention of the Legislature that in the event of the death of the person injured the right so created should inure to the benefit of his estate, or that the estate of the person committing the wrongful act should after his death he liable in damages, provision for the assessment of which is made in the act. A cause of action created by statute does not survive unless declared to do so by the statute itself or unless provision is made by some other statute for such survival. Turney v. Smith et al., 14 Ill. 241; Hitt, Adm’r, v. Scammon, 82 Ill. 519; Selden v. Ill. Trust & Savings Bank, 239 Ill. 67.

Counsel for appellants insist that the estate which they represent was diminished in the amount that the testator, Lansingh, was obliged to pay as .costs and attorneys’ fees in obtaining a dissolution of the injunction, and that therefore, under the authority of North Chicago St. R. R. Co. v. Ackley, 171 Ill. 100, the action survives. We do not think that such a conclusion can he drawn from the case cited. In a later case the Supreme Court has defined with more fullness what is meant by the term “personal property” as used in the statute providing for the survival of actions.

In Jones v. Barmm, Admx., 217 Ill. 381, it is said:

“If the case comes under any provision of the statute it must he the one with reference to actions to recover damages for an injury to personal property. Taking into consideration the well known meaning of the term ‘personal property’ and the connection in which it is used in the statute, we are of the opinion that it was not the intention of the legislature that it should be applied to the right of action occasioned by the malicious interfering by one person with the business of another, but was intended to apply only to actions for damages to tangible articles and things movable — to chattels, as distinguished from actions for damages to one’s business.”

It is further insisted by the appellants that because ■the proceeding is not in form ex delicto it ought to he held by the court that a recovery can he had on an implied assumpsit. It would seem to he a sufficient answer to this contention, however, to say that if there could he said to have been a promise, express or implied, on the part of Dempster in his lifetime to pay these damages, then such action would by the common law survive, hut, so to hold would he to reverse in principle Phelps v. Foster, and Gorton-v. Brown, supra.

In Schreiber v. Sharpless, 110 U. S. 76, it is said:

“The right to proceed against the representatives of a deceased person depends not on forms and mode of proceedings in a suit, hut on the nature of the cause of action for which the suit is brought * * * Whether an action survives depends on the substance of the cause of action, not on the forms of proceedings to enforce it.”

See also Patton v. Brady, Executrix, 184 U. S. 608.

It is said further by the appellants that because the executors of Dempster caused themselves to be substituted as appellees in the case, they should, under the rules of equity, be compellel to do equity, and that in order to do equity they should pay to the appellants, representatives of the estate of Lansingh, the damages which Lansingh may be found to have sustained because of the wrongful suing out of the injunction. We think the contention is sufficiently answered by the reasoning in Schreiher v. Sharpless, supra. But even if the contention -were admitted, there would still be left in the case the objection that the right of Lansingh to maintain a suit for damages was not a right which passed to his representatives on his decease.

Our conclusion is that the decree entered by the Circuit Court was proper, and it will therefore be affirmed.

Decree affirmed.


text:
    Thomas H. Jones, Appellee, v. The Missouri Lumber and Mining Company, Appellant.
    Gen. No. 15,986.
    1. Bkokers and factors — what does not defeat claim for commissions. Seld, in this case, that the party claiming commissions who was not a real estate broker but was a mere middleman, that in view of Ms undertaking being to obtain a certain price specified by the owner, he was under no obligation to undertake to obtain a higher price and eyen if without the knowledge of the owner he arranged to receive commissions from both sides, he was notwithstanding entitled to recover his compensation for effecting the transaction.
    2. Brokers and factors — what does not establish person as real estate broleer required to have license. Negotiating a single sale of real estate does not make one a real estate broker within the meaning of an ordinance requiring the obtaining of a license.
    Appeal from the Superior Court of Cook .county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 28, 1911.
    Seitz, Bryan & Wilber, W. J. Ore and S. L. Clark, for appellant.
    N. M. Jones and George Y. Reynolds, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by appellee against appellant for the recovery of a balance claimed to be due for commissions for the procuring of a sale of 85,000 acres or thereabouts of land located in Missouri.

The case was tried before the court without a jury. There was a finding for the plaintiff, who is the appel-lee here, and against the appellant, and judgment upon such finding, reversal of which judgment is sought upon this appeal.

It appears from the record that the appellant was the owner of a large amount of land upon which timber had formerly stood but had been cut oft in its lumber operations. This land it was very desirous of selling and had placed upon the market at the rate of $1 per acre. The appellee was the editor of a publication in the city of Chicago, and made an arrangement with the appellant under which he undertook to make a sale of 100,000 acres of the land, at a commission to be paid him of 20 cents per acre. Negotiations were had with various parties, and finally a corporation known as the Burchard-Iiurlburt Investment Company was brought into negotiations with the appellant by appellee, and these negotiations resulted in a purchase by the Bur-chard-Hurlburt Company of about 85,000 acres of land, payment being made not in cash but in installments. Prior to the closing of the contract for this sale communications passed between the appellant and the ap-pellee with respect to the commissions, the appellant insisting that whatever might be the result of the negotiations between the appellant and the Burchard-Iiurlburt Company, there should be a complete relinquishment by the appellee of any claims whatsoever for commissions further than what shonld accrue from the sale. The appellee acquiesced substantially, stating in his letter, “I am also willing to accept the commissions of twenty cents per acre, as payment to me for the sale of said lands, in snch amounts as will correspond to the payments made by the purchasers of said lands to the Missouri Lumber & Mining Compaq.” On the purchase price $22,000 was paid in cash, and the appellee was paid the proportion of his commission, namely $4,400. The balance of the purchase money, amounting to $63,000, was to be paid in four installments. Upon payment by the Burchard-Iiurlburt Company to the appellant of each of the first three of the four delayed installments, the appellee was paid the proportion of his commission, being one-fifth of the amount paid upon the principal. The second installment was reduced somewhat by a provision with reference to mineral lands which was incorporated in the contract. This, however, is not a subject of dispute. When the fifth and last payment was made to the appellant, the appellant declined to pay the appel-lee because the appellee demanded interest upon the several installments of his commission, and also insisted that he was entitled to be paid 20 cents per acre on the full 100,000 acres. Thereupon this suit was brought.

The declaration first filed in the case was based upon the claim of appellee that he was entitled to commissions on a sale of 100,000 acres. In the court below and in this court, however, he has signified his willingness to accept compensation upon the basis of the sale that was actually made, which as stated was about 85,000 acres.

Cross-errors have been filed by appellee, in which he alleged as error the refusal and failure of the court to allow him interest on the second, third and fourth installments. We think that the court properly refused to allow interest other than was allowed, being from the date the last payment of, the principal was made. When it appeared that the sale to the Burchard-Hurlburt Company was not to be for cash but was to be on time, appellee, as heretofore stated, expressed his willingness to accept commissions of 20 cents per acre, “in such amounts as will correspond to the payments made by the purchasers of said land. ’ ’ In our opinion by the language used it was not contemplated that interest should be paid appellee on. the various installments of his commission.

On behalf of the appellant it is urged that there should be a reversal of the judgment because of the fact that the appellee made a contract with a man named Simpson, who had had some relations with the Burchard Company. By this arrangement appellee was to divide his commission with Simpson. It would also appear that it was the expectation that Simpson might receive some commission from the purchasing company, and if so he was to divide this commission with appellee. It is claimed by the appellant that this arrangement amounted to an agreement on the part of the appellee to accept commissions from both sides, and the claim was that as he was acting as agent for the appellant he had no legal right, without disclosing that fact to the appellant, to accept any commission o.r thing of value from the purchasers, either directly or indirectly.

On the part of the appellee it is contended that this arrangement was fully known to the appellant, and that in any event the appellee acted merely as a middleman, and that the relation between appellee and appellant was not that of principal and agent.

The appellee was not a real estate broker. The proposition made him by appellant was practically that it should receive 80 cents per acre net for its land. The appellant was not concerned in the division that the appellee might make of the 20 cents per acre. No duty was imposed upon the appellee to endeavor to obtain a higher price than that mentioned. Indeed the negotiations for the purchase between the Burch-ard Company and the appellant were closed directly between these companies without the intervention of the appellee; all that he did was, with Simpson, to bring the parties together. There is some evidence tending to show that it was some time after the deal between them was closed that the appellee knew of the exact amount of land purchased. During all the negotiations for a settlement prior to the bringing of; the suit, the appellant made no .claim of the character now sought to be interposed as a defense. The only subject of discussion was whether the appellee should be allowed commission on the full 100,000 acres, as well as interest on the commission claimed by him. Under such circumstances, in our opinion, the appellee should he regarded as a middleman simply. Mechem’s Agency, sec. 973; O’Neill v. Sinclair, 54 Ill. App. 298.

It is asserted by appellant that this ease should bo governed by the law of Missouri, and there was incorporated into the record and called to our attention in argument the case of Corder v. O’Neill, 106 S. W. Rep. 10. We have read that case with care, and are of the opinion that it is not controlling in the present case. In it there was no question but that the person against whom the charge was made of taking double commissions, was acting as a broker and not as a middleman.

The next point urged upon us is that the appellee should not be allowed to recover because he was acting as a real estate broker in the city of Chicago, and as such had not complied with the ordinance requiring the taking out of a license. This point we think is fully met by the case of O’Neill v. Sinclair, supra, which was affirmed in the Supreme Court (153 Ill. 525). It is held in that case that negotiating a single sale of real estate does not make one a real estate broker within the meaning of the ordinance referred to.

We find no error in the record and the judgment is affirmed.

Judgment affirmed.


text:
    Alexander Odett, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,943.
    1. Negligence — when doctrine of imputed, does not apply. The negligence of a driver is not to "be imputed to a companion riding with him. The latter must, however, in order to recover for an injury occasioned by the conduct of a third party, show that he was not guilty of negligence.

      2. Contributory Negligence — how question determined. The question of contributory negligence is ordinarily one of fact for the jury to determine.
    3. Verdicts — when set aside as against the evidence. A verdict ■which is against the clear preponderance of the evidence will for that reason be set aside on review.
    4. Trial — when conduct of counsel improper. Conduct of counsel consisting in arguing with the court in such a way as improperly to influence the jury, in insulting witnesses, and in unjustifiably holding them up to ridicule, is improper.
    5. Instructions — must not assume existence of imminent danger. Where one of the issues in the case is as to whether or not the plaintiff was in imminent danger immediately before his injury, it is error in instructing the jury upon the exercise of ordinary care by the plaintiff, to assume the existence of imminent danger at such time.
    6. Instructions — essential elements where concludes With direction. If an instruction concludes with a direction to the jury to render a particular verdict, it must contain all the elements appropriate to the rendition of such a verdict.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed November 28, 1911.
    Edward C. HiggiNs and C. LeRoy Brown, for appellant.
    JOHNSON & Belasco, for appellee; Joel Baker, of eonnsel.
   Mr. Justice Clark

delivered the opinion of the court.

This case is for the recovery of damages for personal injuries claimed to have been received October 17, 1905, in a collision at the intersection of Wabash avenue and Hubbard court, in the city of Chicago, between a cable car of appellant and an ice wagon in which appellee was riding with the driver.

There was a verdict of a jury in favor of the ap-pellee for $2,000. This appeal is from a judgment entered on such verdict.

It appears that the ice wagon at the time of the accident was empty. It was drawn by two horses, and weig’hed about 4,300 pounds. The body of the wagon was thirteen or fourteen feet long. The front seat was about eighteen inches from the floor of the wagon, and over the seat was a top with a window on each side. The driver testified that the top was no obstruction to the view of the car, and that one sitting on the seat could see either way without leaning forward at all.

Three witnesses testified on behalf of the plaintiff, who is the appellee here, namely, the plaintiff himself, the driver of the wagon, whose name is Eldridge, and another teamster named Crawford.

Eldridge and Odett testified that they looked towards the north and saw the car about 200 feet away (Odett says 150< or 200 feet); that the train was then coming rapidly; (that Eldridge slapped his horses with the lines but did not hurry them into a trot, and that the grip-car struck one of the rear wheels of the ice wagon. The plaintiff testified that when the car hit the wagon the horses turned northeast and that the train, which had been, as he says, running at the rate of twelve miles an hour, did not stop until it had entirely cleared Hubbard court. Witness Crawford did not agree with the other two witnesses with respect to the distance. They testified that when the horses started to go upon the track the train was about 200 feet away from the point of collision. Crawford testified that it was about 25 feet away.

Five witnesses testified .in regard to this matter on behalf of the defendant, the appellant here. One of them was the gripman; the other four were not connected with the appellant. Their testimony is to the effect that the train was approaching Hubbard court slowly, at the rate of five or six miles an hour; that the gripman rang his gong at the proper time; that the ice wagon was slowly approaching the same intersection from the west; that when the car was about ten feet north of the north cross-walk the teamster suddenly turned his horses to the northeast and drove diagonally across the track, cutting in ahead of the car near the north cross-walk.

On the other hand, the three witnesses for the plaintiff testified that the team proceeded straight across Hubbard court in about the middle of the court.

We are asked to reverse the judgment in this case because, as asserted, the verdict is against the manifest preponderance of the evidence, both as to the negligence of the Railway Company and the contributory negligence of the appellee; secondly, because plaintiff’s counsel was guilty of prejudicial misconduct on the trial, and improper examination of witnesses was allowed; thirdly, because the court erred in instructing the jury.

We agree with the appellee that the negligence of a driver is not to be imputed to a companion riding with him. West Chicago St. R. R. Co. v. Dougherty, 209 Ill. 241. The latter must, however, show that he was himself not guilty of negligence. Flynn v. Chicago City Ry. Co., 250 Ill. 460. Whether or not he was guilty of such contributory negligence is ordinarily a question of fact for the jury to determine. The conduct of a driver, however, in such a case as the one before us is an important matter to be considered by the jury as bearing upon the question as to whether or not the employes of the party sought to be held for the injuries received were guilty of negligence. If the driver of a vehicle indicates, in a case like the present, that he does not intend to cross the track, but to give the right of way to the cars upon the track, then the one managing the ears would not necessarily be guilty of negligence if he made no effort to stop. He would have the right to assume that the driver of the vehicle would not turn his team onto the track suddenly and directly in the path of the cars. The conduct of the driver in suddenly turning Ms team onto the track would not be negligence in itself imputable to the companion who was injured, but-it would have, as heretofore stated, a most direct and important bearing upon the question as to whether or not the employes of the railway company were guilty of negligence. All these circumstances are proper matter for the jury to pass upon in determining the issues in the case under proper instructions.

There is great force to the argument of appellant that if the team was going at the rate of four or five miles an hour, as testified to by appellee’s witnesses, and the car at the rate of ten or twelve miles an hour, and if the car was about 150 or 200 feet from the point where the collision occurred when the team started to cross the track, it would have been a physical impossibility for the car to collide with the wagon, whether the wagon was’ proceeding in an easterly or northeasterly direction. Going at their respective rates of speed, the wagon would have covered at least one-third the distance covered by the grip-car in the same length of time, and thus the wagon would have completely cleared the track before the grip-car reached the point where the collision occurred. It would seem, therefore, that the car at the time the team started to cross the track was, as testified to by one- of appellee’s witnesses and all of the witnesses for the appellant who testified upon the subject, 25 feet or less from the point where the collision occurred.

We have carefully considered the testimony contained in the record, and while we are of the opinion that the court did not err in submitting the case to the jury, we think a new trial should have been granted by the court on the ground that the clear preponderance of the evidence was not with the plaintiff. Donelson v. East St. Louis Ry. Co., 235 Ill. 625.

Great complaint is made by the appellant on account of the alleged misconduct of counsel for appellee in the trial of the case. The charge is made that he did not obey the instructions of the conrt, but argued with the conrt on some matters in a manner which was obviously for the purpose of influencing the jury and not of converting the court to his view of the point at issue. Counsel is also charged with insulting a witness during a wordy controversy with counsel for the appellant in regard to certain questions propounded to the witness. He is also charged with holding the witness up to ridicule; and it is asserted that the court did not properly restrain counsel for appellee in this regard. We think there is much in the record to indicate that the complaint of the appellant is well founded. Such conduct has often been held reversible error. Wabash R. R. Co. v. Billings, 212 Ill. 37; Chicago & Alton R. R. Co. v. Scott, 232 Ill. 419; Atchison vs. McKinnie, 233 Ill. 106.

The fourth instruction given to the jury at the request of appellee is as follows:

“4. If you find from the evidence plaintiff was in the exercise of ordinary care, and that the car of the defendant which struck the wagon could have been stopped by the gripman of the defendant in charge of the car, by the exercise of ordinary care on his part, in time to prevent injuring the plaintiff after he, the gripman, became aware or might have become aware by the exercise of ordinary care of the plaintiff’s imminent danger of being struck by said car, then you should find the defendant guilty.”

We think this instruction erroneous for several reasons, among others that it assumes that the plaintiff was in imminent danger of being struck by the car. This was one of the questions to be determined by the jury in arriving at its verdict. As it happened, the wagon was not upset, and probably the appellee would not have been injured if he had remained in his seat. He, however, apparently became alarmed and undertook to jump from the wagon. As he was doing so his foot caught upon a rail of the wagon and he waa thrown upon ■ the street. Whether his foot was so caught because of the collision is not entirely clear in the record. Inasmuch as the instruction directs a verdict, it should have included in it all the essential elements necessary to be shown in order to warrant a recovery by the plaintiff. The assumption of the existence of a material controverted fact is error. Chicago & Alton R. R. Co. v. Sanders, 154 Ill. 531; Sugar Creek Mining Co. v. Peterson, 177 Ill. 324.

Por the reasons stated, the judgment will be reversed and the cause remanded.

Reversed a/nd remanded.