text:
    Augustus W. Wheeler v. Genevieve A. Wheeler.
    Divorce—Temporary ammoey.—It is not a matter of right under all circumstances for the wife who has commenced a suit for divorce to require the court to direct ail allowance to be paid to her by the defendant for the purpose of defraying the expenses of the suit, or for alimony during its pend-ency. The court is of opinion that a sound legal discretion was not exercised by the court in this case in making the orders for temporary alimony and solicitors’ fees.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed February 17, 1886.
    This was a bill in chancery, filed by appellee, the wife, against appellant, January 24, 1885, for a divorce upon the grounds of extreme and repeated cruelty and adultery on the part of defendant, the husband. The bill was not supported by the oath of the complainant and expressly waived the oath of defendant to the answer. The defendant filed his answer January 31, 1885, specifically denying the several charges in the bill, to which replication was filed February 26, 1885. The court, upon application of the complainant and notice to defendant, made an order that defendant forthwith pay to complainant as temporary alimony for her and her minor daughter, up to March 2, 1885, the sum of $300, and also that he pay her until the further order of the court, the sum of $200 per month for the support of complainant and said daughter, payable on the second and seventeenth days of each month in advance, commencing on the 2d day of March, 1885, and that lie pay to her solicitors the sum of $250 on account of solicitors’ fees. July 2, 1885, on motion of complainant’s solicitor, the court ordered that defendant pay to complainant the sum of $200 as special alimony, within ten days from that date. July 22, 1885, on motion of complainant’s solicitors, the court entered an order to the effect that said order of July 2, 1885, requiring defendant to pay $200 within ten days of that date, be amended so as to provide that the said allowance shall be taken into consideration by the court on account of any allowance that may hereafter be applied for and allowed for solicitors’ fees and otherwise. From said two last mentioned orders the defendant appealed to this court.
    It does not appear from the record that the court below made any inquiry into the cause or circumstances of the separation of the parties, or that there was any proof tending to show á probable cause for the suit; and it appears that the defendant denied under oath the several charges set out in the bill.
    Messrs. Dupee, Judah & Willard, for appellant;
    that the allowance was unreasonable and excessive, cited Ressor v. Ressor, 82 Ill. 442; Foss v. Foss, 100 Ill. 576; Willetts v. Willetts, 104 Ill. 122.
    Mr. Melville W. Fuller, for appellee;
    that the allowance of alimony and its amount are in the discretion of the court, and its orders in that regard will not be reversed except in case of a palpable abuse of discretion, cited Bergen v. Bergen, 22 Ill. 187; Foote v. Foote, 22 Ill. 425; Parker v. Parker, 61 Ill. 369; Daily v. Daily, 64 Ill. 329; Foss v. Foss, 100 Ill. 576.
   McAllister, J.

By section 15 of the Divorce Act, it is provided: “ In all cases of divorce the court may require the husband to pay to the wife, or pay into court for her use during the pendency of the suit, such sum or sums of money as may enable her to maintain or defend the suit, and in every suit for a divorce the wife, when it is just and equitable, shall be entitled to alimony during the pendency of the suit.”

It is not a matter of right, under all circumstances, for the wife who has commenced a suit for a divorce to require the court to direct an allowance to be paid to her by the defendant, for the purpose of defraying the expenses of the suit or for alimony during its pendency. The legislature has left the allowance of both to the sound discretion of the court before which the suit is instituted.

•We are of opinion that a sound legal discretion was not exercised in making the several orders in question. The charges in the bill were specifically denied by the defendant upon his oath, and the court instituted no inquiry into the circumstances or causes of the separation of the parties, or required any proof whatever that there was probable cause for bringing the suit. Worden v. Worden, 3 Edw. Ch. 408 ; Jones v. Jones, 2 Barb. Ch. 146; Carpenter v. Carpenter, 19 How. Pr. R. 539. In Jenkins v. Jenkins, 91 Ill. 167, a general rule was announced as follows: “ Where a bill is pending for divorce and the wife is without means to prosecute her suit, and it appears to the court that complainant has a probable ground for divorce, it has always been regarded proper for the court to enter [an order requiring the defendant to pay solicitors’ fees.”

As to the temporary alimony, the condition upon which the statute authorizes it to be allowed is, that it is just and equitable that it should be allowed. To hold that the mere filing by the wife of a bill for a divorce, and a showing of facilities or pecuniary means of the husband sufficient to justify large and frequent allowances, as in this case, is all that is required, would be to give the most direct encouragement to vain and extravagant wives of husbands possessed of means, to resort to bills of divorce without any just or probable cause, and thus rupture family relations which might otherwise have been preserved unbroken.

The total absence of any evidence of probable cause for this suit, the large amounts applied for, the frequency of the applications, as well as the objects for which they were made, tend to raise a strong suspicion of want of good faith in bringing the suit. The appellee invoked the summary power of the court to raise money for the purpose of paying a special assessment upon her own separate property, to defend herself in a slander suit, with which her husband was in no wise connected, and to carry out plans for visiting the White mountains and seashore, under the pretense that it was necessary to the health of the daughter. We say pretense because it was conclusively shown that the daughter, being afflicted with heart, and spinal affections, both the White mountains and seashore resorts were the very places she should avoid; that quiet places in the rural districts of this and the State of Wisconsin, where she could live at a comparatively moderate expense, W’ould be far more beneficial for the invalid daughter, if not for the mother.

For the reasons stated the two orders appealed from will be reversed and the cause remanded.

Orders reversed.


source: Caselaw Access Project

author: McAllister, J.

license: Public Domain

text:
    Charles H. Waite v. Mary E. Waite.
    Chancery—Appeal—Estoppel.—Where a decree of divorce was entered-at the January term, from which no appeal was taken, but the court reserved for future consideration the subjects of alimony and the custody of the children, and at the next succeeding term the parties appeared before the court and the court made a decretal order-regarding alimony and the custody of the children, from which order an appeal, was taken. Held, that the decree of divorce, as entered at the January term, was such a final decree as that an appeal from it, if taken at that term, would lie. No appeal having been taken, the defendant is conclusively estopped by the original decree from- alleging adultery on the part' of his wife,- and his own innocence of extreme and repeated cruelty.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed February 17, 1886.
    Mr. George F. Westover, for appellant.
    Mr. Edward F. Comstooic,.for appellee.
   McAllister, J.

This was a bill in chancery by appellee against appellant, her husband, for a divorce upon the grounds of adultery and extreme and repeated cruelty. The defendant answered denyingthe charges in the bill and filed a cross-bill charging his wife with adultery to which she answered, denying the charge. Issues were formed by replication, and, at the January term, 1885, of the court, the case was tried by a jury, who, after a full hearing, returned a verdict finding the complainant in the original bill not guilty of adultery, but found the defendant guilty of extreme and repeated cruelty, and not guilty of adultery. The defendant entered.a motion to set aside the verdict and for a new trial, but having voluntarily withdrawn said motion', a. decree was entered, at said January term of said court, reciting said, verdict and finding accordingly, dissolving tlie marriage and freeing the respective parties from the obligations thereof. From that decree no appeal was prayed. But the court having reserved the matters of alimony and the custody of the children for future consideration, at the next succeeding, being the February, term of said court, the respective parties appeared before said court, and a full hearing was granted touching the ages, circumstances, and needs of the children, all being infants; touching the qualifications of the respective parties, in respect to having the custody of the children; touching the means necessary for the support of the complainant and the children and the de fen lint’s pecuniary circam dances, and by a decretal order entered February 24, 1885, the court gave the custody of the three female infant children to the mother, and required the defendant to pay complainant for her support and that of the children in her charge 815 per week, and gave her the use of the homestead, until the further order of the court. From this last decretal order the defendant took and perfected an appeal to this court. Afterward and at the April term of said court, another order was entered, at the instance of complainant and on due notice to defendant, April 13, 1885, that the defendant pay her 815 per week pending said appeal as alimony; and from that order the defendant also prayed and perfected an appeal to this court. Afterward, and July 15, 1885, upon application by complainant and notice to defendant, the court made a further order upon defendant to pay fifty dollars as solicitors’ fees, for attending to her interest, as respects said appeals, and defendant took and perfected an appeal to this court from that order.

Now, upon those appeals, there being none, as we think, from the decree at the January term, dissolving the marriage, the defendant’s counsel has assigned error upon that decree, and given us a lengthy printed argument upon the evidence, to the effect that it shows the complainant to have been an adulteress, and therefore not entitled to a divorce in her favor, or to the custody of the female infant children or to alimony.

The question whether the decree of divorce rendered at the January term is before us and subject to an assignment of error, by reason of the appeal, specifically from the decretal order, at the February term, fixing the amount of alimony and disposing of the custody of the children, is one which lies at the very threshold of the discussion of this case.

We are of opinion that the decree of divorce was, as entered at the January term, such a final decree as that an appeal from it, "if taken at that term, would lie. There are numerous cases in our reports of such appeals. It is true the provisions as to alimony and custody of children were not made until the February term, and from the decree making such provision the appeal alone was taken. The appeal bond recites that and no other. It is well settled law in this State that appeals have no support from the common law. They are solely the creatures of statute, and consequently they must be taken at the time and in the manner prescribed by the statute. Section 68 of the Practice Act (Hurd’s Revised Statutes 1885 p. 907), giving the right of appeal, contains this condition : “ Provided such appeals shall be prayed for and allowed, at the term, at which the judgment, order or decree was rendered,” and then prescribes the condition of the bond. The condition of the appeal bond is conclusive upon the question. It makes no reference to the decree of divorce; neither does the order allowing the appeal. The result is that no appeal has been taken from the original decree of divorce. If not, then the defendant can not assign error upon it. His rights, in that regard, must be confined to the orders actually appealed from. The original decree is a part of the record and constituted the basis for the February order, fixing alimony and disposing of the custody of the infant children who had become the wards of the court. But not having been appealed from, was not the defendant below, at the time of the last mentioned order, and is he not here, conclusively estopped, by that original decree, from alleging that his wife was guilty of adultery ? The decree having expressly found that she was not, we think he was. Hewitt v. Long, 76 Ill. 404. And for the same reason he is estopped from alleging his own innocence of the charge of extreme and repeated cruelty. Of course the conduct of the respective parties, as shown by the evidence in the cause, was competent to be considered by the court below, as respects the questions of alimony and custody of children. But appellant’s counsel takes the radical ground that the entire proceedings should be set aside because the appellee was shown by the evidence to have been guilty of adultery. That question not being open to investigation upon this record as it comes here, the whole foundation of appellant’s case on these appeals seems to fail.

The order appealed from fixing the alimony and disposing of the custody of the .children, seems to us to be reasonable and proper. There was nothing unjust in giving her the use of the homestead and furniture. He receives a salary of §2,500 a year and fifteen dollars a week is no more than reasonable. We are unable to suggest any better mode of providing for the custody of the children than that adopted by the chancellor, especially for the present time. We are of opinion that there is no substantial error in the record, and that the several orders appealed from should be affirmed, with this modification: that, upon appellant complying with the order as to alimony, made at the February term aforesaid, he shall be relieved from that made at the April term aforesaid, which shall be considered as abrogated, but that appellant pay all the costs of this appeal.

Orders modified.


text:
    Western Union Telegraph Co. v. William C. Wright.
    Mistake in telegraph message—Negligence.—Where a commission house sent to a cattle dealer a telegraph message giving the price at which certain cattle had been sold, which was erroneously transmitted by the company, and after the cattle dealer received the message and before he purchased the cattle, he was told how much the cattle had really sold for.
      Held, that under the circumstances he was guilty of contributory negligence in not assuring himself, by repetition of the message or otherwise, of its correctness, before purchasing.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Bog-ebs, Judge, presiding.
    Opinion filed February 17, 1886.
    This action was case, brought by appellee, "Wright, against the appellant telegraph company, to recover damages alleged to have been sustained by the former, by reason of negligence of the latter, in transmitting, Hay 31,1883, a certain telegraph message, which was given by the agents of the plaintiff to an agent of the defendant at its office at the Union Stock Yards, near the city of Chicago, to be sent to the plaintiff at a place called Colorado, in the State of Texas, where the plaintiff then was, and which said message was materially altered when received by the plaintiff. On the trial plaintiff had judgment for §666 and defendant brings the record here for revision. All the evidence is preserved by bill of exceptions, and as to none of the material facts is there any conflict.
    It appears that at the time aforesaid and for several years prior thereto, plaintiff had been engaged in buying cattle in Texas, a-portion of which he shipped to said Union Stock Yards, consigned to Bensley, Wagner & Bensley, commission merchants, to sell for him on commission; that during the month of May, 1883, one Peacock had shipped a lot of grass-fed cattle from Colorado aforesaid, consigned for sale to another firm of commission merchants at said Union Stock Yards; that said lot, belonging to Peacock, had been sold in the market at said stock yards just before May 31, 1883; that plaintiff being about to buy at or near Colorado aforesaid, a lot of similar cattle to send to said stock yards for sale, and being desirous of knowing what the Peacock cattle brought, made arrangements with Bensley, Wagner & Bensley to inform him by telegraph; that defendant, having a telegraphic line from the stock yards to Colorado aforesaid, Bensley, Wagner & Bensley, May 31, 1883, wrote and thus delivered to defendant’s operator, at said stock yards, this message:

      “ To W. C. Wright, Colorado, Texasi Peacock cattle sold four-eighty, average nine hundred sixty-six, receipts moderate.
    «B. W. & B.”
    That when the message was' received by plaintiff at Colorado, instead of saying that the Peacock cattle sold for four-eighty, it read five-eighty; a that plaintiff soon after receiving this message bought 140 head of cattle, paying $40 a head, shipped them to B. W. & B., at said Union Stock Yards, for sale; that three head died in the transit and the rest were sold at a loss of about the amount of the verdict. But the plaintiff, who was a witness in his own behalf, testified that he had no knowledge or information at the time of receiving said message or dispatch, but that it was correct; that at the time of buying said cattle he had heard it on the streets that they had not sold for as much as quoted in the message to him. He was then asked to state when he first obtained knowledge or information concerning the correctness of said telegram, and answered, “ I do not remember when I first obtained such knowledge, but it was between the time of receiving said message, telegram or dispatch, and the purchase of said cattle.” Then again, speaking about the message in question and the Peacock cattle, he says: 61 Nor did I receive any information with reference to the facts or subject-matter contained in said message except what I heard on the streets. I heard that said cattle sold for one dollar per hundred pounds less than my message stated.” The plaintiff made no attempt in his testimony to show that the sources of his information were of such a character as ought not to influence a reasonable person to suspect a mistake in the message, and induce him to take proper precautions to ascertain before acting upon it as to its correctness ; or that he took any precautions for that purpose.
    Messrs. Williams & Thompson, for appellant.
    Mr. Charles W. Needham and Mr. Louis Munson, for appellee.
   McAllister, J.

We are of opinion that from the plaintiff’s own testimony he was guilty of snch contributory negligence as should, unexplained, defeat his right of action. He testified that after the altered telegram was received by him, but before he purchased any cattle, he was informed of the mistake in the telegram, and that the Peacock cattle sold in fact for one dollar less per hundred pounds than said telegram stated, which was the truth. It is true he states that he received that information on one of the streets of Colorado. But that being the place from which the Peacock cattle had been shipped, it is not unreasonable that there should have been some person there who was interested in knowing, and who did know, just the price they had been sold for. The plaintiff, in his evidence, characterized that information as knowledge. It was sufficient to give him a reasonable cause to suspect that there was a mistake in the telegram he had received purporting to state the price at which the Peacock cattle had been sold; then it was clearly his duty before acting upon that message or telegram, to assure himself by repetition of the message or otherwise, of its correctness, and if, without doing so, he acted upon it, he was guilty of contributory negligence which defeats his right of action. Gray’s Com. by Tel. § 76; Western U. Tel. Co. v. Neill, 57 Texas, 283.

The plaintiff, although admitting the fact of receiving such information, does not attempt to state any fact or circumstance in connection with it which could have any tendency to derogate from the force and effect of it, or to show that he used any precautions whatever with a view of ascertaining the correctness of the telegram upon which he professes to have acted.

From his conduct we should infer that he acted upon the presumption that the defendant stood as guarantor of the correctness of the telegram he had received. In' that he was mistaken. The judgment must be reversed and the cause remanded.

Judgment reversed.


author: Bailey, P. J.

text:
    David Preston et al. v. Jesse Spaulding et al.
    1. Chancery jurisdiction.—Where a firm by their general assignment created a trust in favor of their creditors, and one of the beneficiaries, after the neglect and refusal of the trustee to institute proper proceedings for the protection of the trust property, brought bill in equity for that purpose. Held, that equity has jurisdiction in a case of this character.
    2. Voluntary assignment—Jurisdiction.—In cases of voluntary as. signments the county court has exclusive jurisdiction to control, administer upon and distribute the trust estate as well as to control the assignee in the performance of the duties of his trust.
    3. Same.—The assignee, however, in his efforts to get the trust fund into his possession and to subject it to the administrative jurisdiction of the county court, is not necessarily confined to suits and proceedings in that court.
    4. Contract—Right to rescind.—The court is of opinion that under the circumstances of this case, even if appellee originally had a right to rescind the contract of May 1, 1882, for the sale of lumber, such right, at least as against creditors, was lost by his negligence in failing to acquaint himself seasonably with the facts in relation to his vendee’s indebtedness.
    5. Same.—But as to the lumber delivered in October, since the vendees were fully aware that they were insolvent and could have no expectation of paying for said lumber, and formed the plan of getting the lumber into their possession with a preconceived intention of not paying for it but of cheating appellee out of it, appellee has a clear right of rescission.
    6. Assignment—Execution op warrants op attorney to creditors.—Where a firm, just before making an assignment, executed warrants of attorney to confess judgment to certain of their creditors, and this was done without solicitation or any previous arrangement or agreement with said creditors, the latter being in fact mere passive participants in the transaction. Held, that the warrants of attorney and the assignment were but parts of the same transaction, and'that, they together constituted the assignment of the debtor’s property within the meaning of the statute in relation to voluntary assignments for the benefit of creditors.
    Appeal from the Circuit Court of Cook county; the Hon. T. A. Mohan, Judge, presiding.
    Opinion filed February 17, 1886.
    This was a bill in chancery brought' by Jesse Spaulding to rescind certain sales of lumber made by him to the firm of Hair & Odiorne, and to restrain proceedings under certain judgments by confession against said firm, and for a receiver.
    On the 31st day of October, 1882, said firm of Hair & Odiorne, consisting of James A. Hair, Samuel G. Hair and "William H. Odiorne, being largely indebted to the complainant and various other parties, and really insolvent, and it being apparent that, because of the approaching maturity of their outstanding obligations, their true financial condition could be no longer concealed, determined, after conference with their attorneys, to confess judgments in favor of certain of their creditors, whom they wished to prefer, and then make a general assignment for the benefit of their creditors. In pursuance of this plan, said firm caused to be drawn up judgment notes corresponding in dates and amounts with the.notes and other commercial paper then held by the creditors whom they desired to prefer, and on November 1, 1882, in the early part of the day, a member of the firm, accompanied by one of their attorneys, visited said creditors and delivered said notes to them, merely saying that said notes were to take the place of the paper they then held, but giving them no other or further information in relation to the purposes of Hair & Odiorne in the premises. The creditors to whom said notes were delivered caused judgments to be immediately entered thereon against said firm, and executions to be issued on said judgments and placed in the hands of the proper officers.
    Of said judgments,lone in favor of the National Bank of Illinois for $34,943-69, was entered in the Circuit Court of the Hnited States for the Northern District of Illinois; three were entered in the Superior Court of Cook county, viz., one in favor of John Farson for $20,000.19, one in favor of George W. Van Zandt for $13,913.58, and one in favor of David Vernon for $13,611.18; also one judgment in the Circuit Court of Cook county in favor of James Thomas for $4,805.36. Of these judgments, the one in favor of Farson was for the benefit of Preston & Kean, the one in favor of Van Zandt was for the benefit of Beveridge, Dewey & Van Zandt, the one in favor of Vernon was for the benefit of the Commercial National Bank, and the one in favor of Thomas was for the benefit of L. A. Carton. All of these judgments were entered and executions issued between the hours of 11:30 a. m. and 2:05 p. m. At 2:45 p. m. of the same day, Ilair & Odiorne executed and filed for record a' general assignment to Milton E. Fresliwaters for the benefit of their creditors. A second judgment in favor of the National Bank of Illinois for 84,638 was entered up in the Circuit Court of the United States on the following day and an execution issued thereon and placed in the hands of the marshal.
    Under the executions from the United States Court, the marshal immediately levied upon and took possession of the stock of lumber belonging to Hair & Odiorne, and the sheriff shortly afterward indorsed upon the executions in his hands a levy upon the same property, subject to the levy made by the marshal. This bill was thereupon filed and a preliminary injunction issued, restraining the sheriff from selling said property under the executions in his hands. A similar bill was filed by the complainant in the Circuit Court of the United States, asking for an injunction restraining the marshal from selling under the executions in his hands, but that court refused to award an injunction, and the marshal proceeded to sell, and after satisfying his executions, turned over to the sheriff the residue of the property; and the marshal also subsequently paid over to the receiver appointed in this suit the sum of $5,992.39, being the cash surplus in his hands of the proceeds of the property sold by him. The National Bank of Illinois is not a party to this suit, and no question is made as to the val it ity of its judgments, and the sale thereunder is not in controversy.
    The complainant, at the time of the execution of the assignment, was a large creditor of Hair & Odiorne for lumber sold and delivered to them, and claims both as a vendor seeking to rescind certain sales of lumber, and as a creditor. In his original bill he alleges that Fresh-waters, the assignee, had not commenced any proceedings to set aside the judgments in the superior and circuit courts, and the levies thereunder, and to have the same declared void, and alleges his unwillingness so to do. Afterward Robert E. Jenkins was substituted for said Freskwaters as assignee, and he was thereupon made a party defendant, and he subsequently filed an answer and cross-bill, seeking to have said judgments and executions set aside.
    After the issues were made up, the court appointed a receiver to take the property in the hands of the sheriff and convert the same into money, it being provided that the rights of all claimants upon said property as they then existed, should follow and attach upon the proceeds to the same extent as upon the property itself, until the final disposition of the cause. The receiver subsequently reported that he had disposed of all of said property, realizing, after paying costs and expenses, the sum of $60,401.76. To this is to be added the $5,992.30 subsequently received by him from the marshal.
    During the progress of the litigation, the Commercial Rational Bank effected some settlement with the complainant, and the money supposed to represent the amount of its judgment was withdrawn from the hands of the receiver by an order of court, and paid over to the assignee, and the interests of the Commercial Rational Bank in this litigation were thereupon ended. The same thing was done in relation to $9,722.55 of the judgment in favor of Beveridge, Dewey & Van Zandt. There remains, therefore, in the hands of the receiver, about $42,000, and the residue of the claims under said judgments not settled and adjusted amount to about $30,000.
    At the time of the transactions in question, the complainant was a manufacturer of lumber, having a mill at Cedar River, Michigan, and a business office in Chicago, and the firm of Hair & Odiorne were lumber dealers in Chicago. Hair & Odiorne had been dealing with the complainant for several years, and during that time had purchased substantially their entire stock of lumber of him. Said purchases were usually made on a credit of six months, and according to their usual course, of business, each cargo of lumber, on its arrival, was inspected and the amount ascertained, and thereupon Hair & Odiorne executed their promissory note to the . complainant therefor due six months after date.

      It seems to have been usual with said parties, prior to each year’s shipments of lumber, to make a special agreement, fixing the prices, the amount of lumber to be shipped to Hair & Odiorne during the season, etc., and accordingly, on the 5th day of May, 1882, the complainant submitted to them a proposition in writing, to sell them during the year 1882, 10,000,-000 feet of lumber of the average cut of said mill, at certain specified prices, and providing further that, if he should electto let them have the entire cut of said mill, it should he at the same prices, and that they should take the entire cut of the mill if he wished them to do so. This proposition was on the same day accepted hy Hair & Odiorne, and the complainant proceeded to deliver them lumber under it. The aggregate amount of lumber sold and delivered by the complainant to Hair & Odiorne between the date of said contract and October 31, 1882, was 15,700,514 feet, besides a large amount of lath and pickets. Some question was made, at the hearing as to whether all of said lumber was delivered under the contract of May 5, 1882, or whether the portion of it in excess of 10,000,000 feet was delivered under a subsequent arrangement.
    On the 31st day of October, 1882, Hair & Odiorne had become indebted to the complainant on notes thus given to him for lumber, to the amount of $236,603.81, and also for two cargoes of lumber then recently received, amounting to $10,629.08, making a total indebtedness of $247,322.89.
    The complainant, during the course of his dealings with Hair & Odiorne, had required of them, at different intervals, statements of their financial condition, showing the amount of their assets and liabilities, and his dealings with them were, as is claimed, based upon and entered into in reliance upon the truth of said statements. There is no complaint of the accuracy and truthfulness of the statements made prior to the year 1882. Three were made during that year, viz., February 1st, April 1st and June 1st, from which a large amount of indebtedness from Hair & Odiorne to parties other than the complainant Avas omitted. Of these statements, the first showed an excess of assets over liabilities of $62,871.50, the second of $02,918, and the third, though purporting to estimate the indebtedness without accurately figuring it, indicated about the same result. The evidence shows that, at the time these statements were made, the omitted indebtedness largely exceeded the amount of said balances, and that Hair & Odiorne were in fact owing much more than they had the means or ability to pay.
    There is considerable conflict in the evidence as to the purposes for which these statements were required and the circumstances under which they were given, especially that of February 1st. The complainant’s evidence tends to show that at the time that statement was made, negotiations were pending for the sale to Hair & Odiorne, of their lumber for the season of 1882, and that the contract subsequently made was entered into by him in reliance upon its truthfulness. The evidence on behalf of Hair & Odiorne, on the other hand, tends to show that when that statement was made, no negotiations of the character .above mentioned wore pending; that at that time a large amount of the notes given by them to the complainant in 1881, for lumber, were unpaid, and that they applied to the complainant for an extension, in accordance with a previous agreement on that subject; that the complainant, before he would consent to extend said notes, required of them a statement of their assets and liabilities, so that he could use it if necessary at the Commercial ¡National Bank; that they protested against giving any statement, on the ground that the complainant had already bound himself by contract to grant them the extension desired; that they asked him what sort of a. statement he wanted, and that he replied: “Put down what stock you have on hand and what you owe the Chicago yards, and what you owe me, and strike a balance.” That they made a statement of that character and delivered it to the complainant, accompanying it with a letter in which they protested against his requiring any statement, claiming that his doing so was a violation of his contract, and informed him that to prepare the statement in time to secure a renewal of the notes; they were compelled to hastily estimate their stock of lumber as well as the other matters therein contained; that it was not a complete statement of either their assets or liabilities, and that they were using their credit outside of their trade with the complainant, and were making outside loans in order to relieve the complainant by paying off his notes. The complainant’s evidence tends to show that said letter was never received by him, and that Hair & Odiorne’s account of the circumstances under which said statement was made is untrue.
    The cause was heard on pleadings and proofs, and a decree entered by which the court found, among other things, that the letter above mentioned was not delivered to or received by the complainant; that the statement of February 1, 1882, Avas false and fraudulent, and was delivered by Hair & Odiorne to the complainant Avith intent to deceive him in relation to the safety of continuing to renew their paper and of continuing to make contracts Avith them, and to fraudulently induce him to renew said notes if called upon to do so, and to sell them lumber for the season of 1882; and that the complainant relied upon said statement and believed it to be true; that the statement of April 1,1882, Avas also false and fraudulent and Avas made for like purpose; that in entering into the contract of May 5,1882, the complainant relied upon both of said statements, but that he Avas so put on inquiry as to the financial condition of Hair & Odiorne, as to render himself chargeable Avith negligence in the premises as to the defendants; that on or shortly prior to June L, 1882, Hair & Odiorne applied to the complainant to increase the amount of lumber to be delivered under the contract of May 5, 1882, from 10,000,000 to 12,000,000 feet5 and delivered to him the statement of their assets and liabilities of June 1, 1882; that said statement was false and fraudulent and knoAvn to be such by Hair & Odiorne, and that the complainant relied upon its truth, and caused to be delivered, to Hair & Odiorne lumber Avhich, with that already delivered, aggregated 12,127,645 feet, the last cargo of said lumber being delivered September 25, 1882; that afterward Hair & Odiorne claimed and insisted that the complainant had agreed to sell and deliver to them 14,000,000 instead of 12,000,000 feet of lumber, and that the complainant, although denying having made such an agreement, yet relying upon said statements, delivered to Hair & Odiorne five additional cargoes of lumber, the last of which was delivered October 11, 1882, making the aggregate 14,072,285 feet; that afterward the complainant, relying.upon said statements, at the request of Hair & Odiorne, delivered to them, upon the same terms as previously agreed upon, five, more cargoes of lumber, the last being delivered October 31, 1882, making an aggregate of 15,700,514 feet; that at and prior to the date of their claims that the complainant had agreed to sell and deliver to them 14,000,000 feet of lumber, they well knew that their liabilities largely exceeded their assets, and that they would be unable to meet their liabililies as they matured, and would not be able to pay the complainant for the lumber thereafter delivered to them, and that all the lumber received by them on or after September 30, 1882, was received by them with the knowledge and expectation that they would not pay the complainant therefor, and in contemplation of their insolvency and with the intention of not paying the complainant therefor, and that, as to such lumber, the complainant was entitled, and at the time of filing his bill had elected, to rescind said sales, and have said lumber returned to him.
    The court further found that said judgments by confession in the Circuit and Superior Courts of Cook county, were in fraud of the law prohibiting preferences in assignments for the benefit of creditors, and should be decreed fraudulent and void; and it was thereupon decreed that the lumber delivered by the complainant to Hair & Odiorne on or after September 30, 1882, be rescinded and the title of the complainant to said lumber established, and that so much of the money in the hands of the receiver as was realized from the sale of said lumber, in equity belonged to the complainant, and the amount of said money being found to be $11,198.32, it was ordered that the receiver pay the same to the complainant, and that he pay the residue of the moneys in his hands to the assignee of Hair & Odiorne. From this decree the said judgment creditors have appealed to this court.
    Mr. W. H. Swift, Messrs. C. H. & C. B. Wood, Mr. Edwin F. Bayley and Messrs. Jones & Jones, for appellants.

      Messrs. Dexter, Herrick & Aller, Mr. Melville W. Fuller, and Messrs. Jenkirs & Habkress, for appellees.
   Bailey, P. J.

In this case the question is presented, in limine, whether the court below had jurisdiction, either under the original bill or the cross-bill, to grant the relief prayed for. Spaulding, the complainant in the original bill, seeks relief in two different forms, and dependent upon different principles. First, as to a portion of his transactions with Hair & Odióme, he tiles his bill as a vendor, to obtain a rescission of the contract of sale for fraud, and a restoration to him of the property sold. As to the residue of said transactions, he assumes the attitude of a creditor, seeking to have certain preferences in favor of other creditors of Hair & Odiorne declared to be unlawful and void, and the property or fund thus disposed of surrendered to the assignee under the general assignment for the benefit of creditors.

In support of his right to the relief last mentioned, Spaulding alleges a refusal by the assignee to interpose in his own behalf, or to take any steps to assert his title to the property now sought to be reclaimed from the preferred creditors. The original assignee, however, having been removed, his successor in trust subsequently appeared and filed his cross-bill, making substantially the same allegations in relation to said preferences as are made in the original bill, and claiming the property taken by the preferred creditors as a part of the estate vested in him by the assignment.

The jurisdiction of courts of equity to decree the rescission of contracts for fraud, and to administer those remedies which are dependent upon such rescission, is well established. Pomeroy’s Eq. Juris., §§ 110, 112. So far, then, as the bill seeks to obtain relief of that character, there can be no question as to the jurisdiction of the court.

Upon the other branch of the case, it is urged that Spaulding, not having exhausted his legal remedy by obtaining judgment and having execution returned unsatisfied, is in no position to assail or call in question any disposition his debtors may have made of their property. The rule is, that before a creditor can maintain a creditor’s bill, or a bill in the nature of a creditor’s bill, for the purpose of reaching property fraudulently conveyed or disposed of by his debtor, and subjecting it to the payment of his debt, he must exhaust his legal remedy. This, however, is not a bill of that character. Hair & Odióme, by their general assignment, created a trust in favor of their creditors, and Spaulding, one of the beneficiaries, after the neglect and refusal of the trustee to institute proper proceedings for the protection of the trust property, brought the bill for that purpose in liis own behalf. We sec no ground of objection upon principle to the maizitenanoe of such bill, and the authorities cited by the counsel for the-appellees seem to sustain the jurisdiction of equity in-cases of this character.

But it is said that under the statute izi relation to voluntazy assignznents for the benefit of creditors, full and exclusive jurisdiction of all znatters pertaining to the property assigned is vested in the county court. Since the decisions of the Supreme Court in Freydendall v. Baldwin, 103 Ill. 325, and Hanchett v. Waterbury, 17 Chicago Legal News, 412, the rule must be regained as settled, that, in cases of voluntazy assignments, the county court has exclusive jurisdiction to control, administer upon and distribute the trust estate, as well as to control the assignee in the pezionnance of the duties of his trust. But, in our opinion, it does not follow, either from the rules of law established by those decisions or from any provision we are able to find in the statute itself, that the assignee, in his efforts to get the trust fund into his possession, and to subject it to the administrative jurisdiction of the county court, is necessarily confined to suits and proceedings in that court. A rule limiting him to that exclusive forum, would manifestly result in great and often in insurmountable difficulties. It may well be questioned whether the county court, with a common law jurisdiction limited in amount to §1,000, and with no chancery jurisdiction, could entertain suits at law on behalf of the assignee to recover more than §1,000, or suits in chancezy of any character. We find no provision in the statute conferring such jurisdiction. But even if there were, it is difficult to see how parties residing beyond the reach of its process could be sued at all.

Jurisdiction of the administration of estates is vested by statute in the county courts, and such jurisdiction may be said to be practically exclusive, but it has never been held that an executor or administrator might not, in collecting the estate, or in litigating adverse claims, bring suit in any court of eom. 2)etent jurisdiction. The right of executors and administrators to resort for these purposes to other judicial tribunals has never been questioned, nor has it been siqqmsed that their doing so trenched in the least-upon the exclusive jurisdiction of county courts over the administration of the estates. In Ilanchett v. Waterbury, it is held that county courts, in exercising the jurisdiction conferred by the statute in relation to voluntary assignments, are closely analogous to courts of bankruptcy, and governed by substantially the same jrrincijfies; but it is well known that although exclusive jurisdiction in cases of bankruptcy was vested in the district courts of the United States, yet jurisdiction of suits brought by assignees in bankruptcy in other courts, both State and Federal, has been uniformly sustained.

The eleventh section of the statute in relation to voluntary assignments, expressly authorizes assignees to sue for and recover in their own names, everything belonging or appertaining to the estates assigned. It can scarcely he doubted that the legislative intention here expressed is, to give assignees the right to institute suits in their .own names in any court of competent j urisdiction, .for the recovery of any 2Dortion of the estate vested in them by the assignment. Such suits are not. in derogation of the jurisdiction of the county court, but ancillary to it. We are of the ojfinion, therefore, that the circuit court, sitting as a court of chancery, had jurisdiction of the hill and-cross-bill in this case.

Is the decree warranted by the evidence? Let us first consider that branch of the case which relates to the question of rescission. S[Paulding, in the original bill, puays for a decree rescinding the sale of all the lumber delivered subsequent to the date of the contract of May 5, 1882. This relief was denied except as to the lumber delivered on or subsequent to September 30, 1882. As to that portion of the lumber sold, a rescission was decreed, and the' receiver was ordered to pay over to Spaulding the proceeds of so much of the lumber delivered on or subsequent to September 30, 1882, as came to the hands of the sheriff. The rescission, so far as it is granted by the decree, is assigned for error by the defendants, and the refusal of the court to decree a rescission to the extent prayed for in the bill is assigned for error by Spaulding, he having filed cross-errors.

Spaulding claims the right to - rescind the contract of May 6, 1882, on account of false and fraudulent representations made by Hair & Odiorne to him, prior to that time, in relation to their financial condition and circumstances. The representations made by Hair & Odiorne prior to the execution of the contract are contained in the statements of their assets and liabilities made by them to Spaulding February 1, 1882, and April 1, 1882. These statements, so far as they relate to the debts and liabilities of Hair & Odiorne, disclose no indebtedness beyond that owing to Spaulding, except that the February statement mentions a small sum due other lumber yards. That they were owing large sums of money to other parties for borrowed money at the time these statements were made seems to be conceded, and to that extent the statements were unquestionably false.

The evidence of the circumstances under which these statements, especially the one of February 1st, were made, is conflicting. Spaulding gave evidence tending to show that he had no notice or information in relation to the omitted indebtedness, but supposed that said statements made a true and complete disclosure of the assets and liabilities of Hair & Odiorne, and that he believed and relied upon them as such. The evidence adduced bv the defendants tended to 'show, on the other - hand, that the statement of February 1st was accompanied by a letter from Hair & Odiorne expressly notifying Spaulding that it was only a partial statement of their indebtedness, and that they had been borrowing money from other parties, and also, that Spaulding, at the time both statements were made, had notice from other sources that they had incurred and were incurring liabilities to other parties for borrowed money. Without attempting to review the evidence on these questions in detail, it will be sufficient to say that, in our opinion, it fairly warranted the conclusion to which the court below seems to have arrived, viz., that the delivery of said letter to Spaulding at the time of the malting of the February statement was not proved, but that at the time the contract was made, Spaulding had notice that Hair & Odiorne were borrowing money of other parties to some extent.

It may well be doubted whether, under the circumstances, Spaulding would have been authorized to rescind the contract, even if he had acted promptly. Having notice that Hair & Odiorne were borrowing money at one or more of the banks, the most ordinary prudence would have prompted him to make inquiries upon that subject and ascertain the extent of the liabilities thus incurred, before entering hito a contract to sell and deliver to them wholly on credit, nearly §200,000 worth of lumber.

The relations between these parties were exceptional. For several years prior to the execution of said contract, Spaulding had been a large manufacturer of lumber. Hair & Odióme, though possessed of relatively a very limited capital, had, during that time, been extensively engaged in the lumber trade, their entire stock of lumber, substantially, being furnished them by Spaulding on credit, the same constituting, at least, much the larger portion of the product of Spaulding’s mills. The term of the credit was sufficiently long, as the parties seem to have contemplated, to enable Hair & Odiorne to sell the lumber and convert it into cash, before their payments to Spaulding should become due. In form, Hair & Odiorne were purchasers of Spaulding’s lumber. In substance their relations to him had features bearing a strong resemblance to that of brokers employed by him to dispose of the. product of his mills in the Chicago market.

It is clear that Spaulding was all the time in a position where it was not only his right but his duty to keep himself fully informed of the pecuniary circumstances of Hair & Odiorne. His relations to them were such as would have justified him at any time in addressing to them the most searching and minute inquiries. His own interests were so largely involved in the question of their solvency that he could not, without the imputation of negligence, omit to investigate any fact coming to his knowledge having an apparent bearing upon that subject. Beyond this we think that, under the peculiar circumstances of the case, he owed a like duty to the commercial public, who were likely to be induced to trust Hair & Odiorne on the faith of the apparent ownership of the lumber put into their possession by him.

But even if Spaulding originally had a right to rescind said contract, such right, at least as against creditors, was lost by his negligence in failing to acquaint himself seasonably with the facts in relation to Hah1 & Odiorue’s indebtedness. Beyond receiving from them an incomplete statement of their assets and liabilities on the first day of June, he is not shown to have used the slightest diligence, or to have made the slightest effort to ascertain their financial condition until their failure. At that time their indebtedness for borrowed money exceeded $90,000, of which nearly $14,000 was borrowed from the bank at which Spaulding usually did his banking business. His whole conduct evinced a, most extraordinary confidence in Hair & Odiorne, and a singular omissi&n of that care and vigilance which ordinary business prudence would dictate. Under these circumstances he is hardly in a position to invoke the aid of equity to cancel his contract and restore to him the property delivered under it.

As to the lumber delivered on or after September 30,1882, the facts are different and call for the application of different rules. That lumber, in the first place, does not appear to have been delivered under the contract of May 5, 1882. Had it been a part of the lumber embraced in that contract, the right to rescind would be determined by the state of things at the time the contract was entered into, and would not be affected by the subsequent turn of events, except so far as such events might tend to show that there was no ground for rescission. Bigelow on Frauds, 406. By the contract of May 5, 1882, Spaulding agreed to sell and deliver, to Hair & Odiorne 10,000,000 feet of lumber, hut reserved an option, which he had a right to exercise or not, as he pleased, to deliver, in addition to that amount, the residue of his product for the season. The last cargo delivered prion1 to September 30th, completed an aggregate of over 12,000,000 feet. At that time Spaulding was under no contract obligation to deliver any more. His original contract was more than filled ; and although Hair & Odiorne then claimed and insisted that he had agreed to deliver to them a larger amount, no such agreement is shown by the evidence. At then1 solicitation, however, Spaulding, while denying that he had previously agreed so to do, did deliver to them ten cargoes of lumber during the month of October. It follows from the rule above stated, that Spaulding’s right to a rescission of the October sales must depend upon the facts as they existed at the time he agreed to make them.

The evidence shows that as early as September 30th, and perhaps earlier, Hair & Odiorne had become aware of their inevitable insolvency, and began to adjust their affairs with reference to that event. In doing so, they commenced about the last of September to pay, in money and property, various debts owing to their relatives and personal friends, and that being accomplished, their entire and disastrous failure speedily followed. The facts scarcely leave room for doubt, that when they applied to Spaulding for the lumber delivered to them in October, they were fully aware that they were insolvent, and could have no expectation of paying for said lumber, and so formed the plan of getting the lumber into then1 possession with a preconceived intention of not paying for it, but of cheating Spaulding out of it. These facts gave Spaulding a clear right of rescission, and as he elected to rescind in due time after becoming aware of the fraud, we think the rescission was properly decreed.

It remains to consider that portion of the decree which relates to the lien of the judgments by confession. The evidence is undisputed that the warrants of attorney, by virtue of which said judgments were confessed, were executed by Hair & Odiorne without solicitation by the creditors to whom they were given, and without any previous agreement or arrangement with them, said creditors being in fact mere, passive participants in the transaction. No intimation of any kind was given to them of Hair & Odiorne’s intention to execute to them said warrants of attorney until a member of that firm, acconqianied by one of his attorneys, presented himself at their respective business offices on the morning of November 1, 1882, and delivered to them said instruments, merely saying that they were to take the place of the paper said creditors then held against said firm, but with no other comment or explanation. The evidence also shows beyond controversy that the execution of the warrants of attorney was a part of a plan previously determined, upon by Hair & Odiorne to dispose of all their property for the benefit of their creditors, and to give preference in so doing to the creditors named in the warrants, and that said plan was, on the same day and but a few minutes after the last of said judgments had been entered up, fully carried out by the execution by Hair & Odiorne of a voluntary assignment under the statute.

Under these circumstances, it is consonant both with reason and authority to hold that the warrants of attorney and the assignment were but parts of the same transaction: and that they together constituted the assignment of the debtor’s property within the meaning of the statute in relation to voluntary assignments for the benefit of creditors. Berry v. Cutts, 42 Maine, 445; Perry v. Holden, 22 Pick. 269; Holt v. Bancroft, 30 Ala, 193; Van Patten v. Barr, 52 Iowa, 518 ; Livermore v. McNair, 34 N. J. Eq. 478; Kellogg v. Root, 23 Fed. Rep. 525; Hahn v. Salmon, 20 Id. 801; U. S. v. Griswold, 8 Id. 496 ; Doggett v. Herman, 5 McCrary, 269; Burrows v. Lehndorff, 8 Iowa, 96. As said by Chief Justice Shaw in Perry v. Holden, supra, “Instruments made at the same time, between the same parties, to accomplish one and the same object, shall be construed and taken together as one transaction, and the same is held as to deeds between different parties.”

The rule is well stated by the Supreme Court of Maine in Berry v. Cutts, supra, as follows: When a debtor, in contemplation of an assignment under the act, shall determine upon a distribution of his estate among his creditors, and in execution of such contemplated assignment and determination, and for the purpose of giving a preference to one chiss of creditors over another class, shall transfer to such preferred class distinct portions of his estate, and then assign the residue thereof to his general creditors, though the different instruments may not bear the same date or be executed at the same point of time, if they are executed in pursuance of an original design contemplated and determined upon in the beginning, they will be deemed in law one transaction, a transaction consisting of a series of acts intended to produce one result, to wit, the distribution of the debtor’s estate among his creditors.”

It is strenuously insisted, however, that before the rights of these judgment creditors can be affected by the subsequent execution by Hair & Odiorne of the assignment, it should be shown that they knew or were chargeable with notice of the fraudulent intention on the part of Hair & Odiorne to evade the provision of the statute. We have considered with attention the very able argument presented by the counsel for the appellants in supjiort of this proposition, but are unable to adopt their conclusions as applicable to the facts in this case. Had the warrants of attorney been executed in pursuance of a previous contract with said creditors, or if they had been executed at their instance and on their application, so as to have rendered them in any proper sense moving parties in the transaction, it may well be doubted whether the rights thus acquired by them could be affected by any secret intention on the part of their debtors, of which they had no notice, and in which they did not participate. Here, however, they were merely passive. The execution of the warrants of attorney was the mere voluntary, unsolicited act of their debtors, and we are unable to see that their position, in the view of a court of equity, should be held to be at all different from what it would have been, if the preference had been embodied in the assignment itself.

This view- was adopted by the Circuit Court of the United States for the Western District of Michigan, in Kellogg v. Root, supra. In that case an insolvent debtor, at his own instance, gave certain of his creditors security by way of a mortgage, and shortly afterward made an assignment, the circumstances justifying the inference that the mortgage and assignment were executed in pursuance of the same plan so as to be deemed in law but one transaction. The court, in holding the preference to be void, discusses the question under consideration here as follows: “ It does not change the views expressed that the mortgagees had no notice or knowledge of the contemplated assignment at the time the mortgages were signed or placed on file, for the reason that they were not actors or participants in the giving of'the instrument of security. They were intended as preferences by the only party who had to do with their creation, or who had any intention concerning them, and this party’s purpose then and there was to give preferences by means of the mortgages, and follow them by a general assignment in the near future. They were fraudulent and void at their inception as against other creditors and could not be thereafter delivered as valid instruments. * * * The case at bar was not one where a diligent creditor was present and pressing for security from his insolvent debtor. I do - not question, in view of the decisions of the Supreme Court of Michigan, the right of a creditor to take security by mortgage or otherwise from his insolvent debtor, with knowledge of his financial weakness, so long as the creditor has no notice or knowledge that the debtor contemplates making an assignment; but the security must be given at the instance of the creditor, be duly delivered, and he must have no notice or knowledge of any fraudulent purpose, within the meaning of the statute.”

Among the numerous authorities cited by counsel, we are able to find none which, when properly understood, is in conflict with the views above expressed. We have neither the time nor space to notice said authorities in detail, but we find none, where the preference is the voluntary, unsolicited act of the debtor, in which-it is held that in order - to defeat the preference, it is necessary to prove knowledge or notice to the preferred creditor of the intention on the part of his debtor to create such preference in violation of the statute.

The thirteenth section of the statute in relation to voluntary assignments for the benefit of creditors, declares that every provision of any assignment for the payment of one debt or liability in preference to another shall be void, and that all debts and liabilities within the provisions of the assignment, shall be paid pro rata from the assets assigned. It follows that the warrants of attorney and the judgments entered thereon are void by force of:.the statute, and that all the estate of the debtors, including that seized under" said judgments and the executions issued thereon, passed by the assignment to the assignee. The conclusions we have thus reached are in entire harmony with the decree of the court below, and said decree will accordingly be affirmed.

Decree affirmed.


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    George Bartalott v. International Bank.
    Collateral security—Wher rot released by payment of principal. —Where principal notes amounting to $20,000 have been given, and two notes for $15,000 each, secured by a trust deed upon real estate, delivered as collateral thereto, the payment of the amount due upon the principal notes will not operate to release the deed of trust and two $15,000 notes held as collateral thereto, when it appears that a contract has been made between the parties previous to such payment, that all notes in the hands of the creditor, including said $15,000 notes, should be held as collateral to other outstanding debts and obligations, some of which debts and obligations were still unpaid at the time of such payment.
    Appeal from the Superior Court of Cook county; the Hon. Bollix S. Williamson, Judge, presiding.
    Opinion filed February 17, 1886.

      Messrs. Beaming & Thompson, for appellant.
    Messrs. Rosenthal -& Pence, for appellee.
   Bailey, P. J.

This cause is now before this court for the third time, our decisions on the former appeals being reported as International Bank v. Bartalott, 11 Bradwell, 620, and Bartalott v. International Bank, 14 Id. 158. Issue has now been taken upon the plaintiff’s amended replication to the Statute of Limitations by rejoinder, and the cause having come on for trial, the court, at the close of the evidence, on motion of the defendant, instructed the jury to find a verdict for the defendant, which was accordingly done, and judgment was rendered against the plaintiff for costs.

The facts at issue are so fully stated in the reports of our former decisions, that the following statement will suffice for the present occasion. The plaintiff alleges that on the 12th day of October, 1870, he purchased of Samuel J. Walker, certain land in Cook county, paying him therefor the sum of $48,500, Walker procuring a conveyance of the land to the plaintiff from one Henry H. Walker, and assuring the plaintiff that it was free from incumbrance, and promising to furnish him an abstract of the title ; that Walker failing to furnish the abstract, the plaintiff, about January 1,1874, obtained one for himself, and on examining it, ascertained that there appeared of record a deed of trust on said land bearing date July 22, 1869, executed by Henry H. Walker, to one Francis A. Hoffman, to secure two notes for $15,000 each, payable to the order of Samuel J. Walker; that said -notes had been deposited by Sunuel J. Walker with the defendant as collateral security to certain other notes amounting to $20,000, and that on the 11th of September, 1878, Walker paid the defendant $20,000, and canceled the princijial notes and also the two $15,000 notes secured by the deed of trust, but left all of said notes in the defendants keeping ; that when the plaintiff discovered the incumbrance, he made diligent inquiries to learn whether it had been paid; that on asking Walker in relation to the matter, the plaintiff was informed by him that $20,000 remained due on the deed of trust, which he, Walker, was unable to pay; that the plaintiff then went to the defendant and made similar inquiries of its .president, and received similar information ; the president representing to him that the defendant held said notes and deed of trust; that said notes had not been paid, and that there was due thereon the sum of $23,000; that the plaintiff, thereupon, in order to free his land from said incumbrance, was compelled to pay and did pay to the defendant the sum of $15,000 in satisfaction of the deed of trust, and for a release of his land therefrom. This suit was brought to recover back from the defendant the money so paid, with interest.

To authorize a recovery it must appear, among other things, that at the time of the payment by the plaintiff to the defendant of said sum of $15,000, the deed of trust had been paid, and the defendant had no right to demand of the plaintiff the payment of that sum as a condition precedent to the release of said security. As bearing upon that question, it was shown without contradiction that for a number of years prior to the payment of said money, Samuel J. Walker had been from time to time borrowing large sums of money of the defendant, and Securing the same by his own notes or the notes of II. II. Walker, and the deposit of various other securities as collaterals thereto. On the 7th day of July, 1839, and while said transactions between Samuel J. Walker .and the defendant were in progress, Walker entered into an agreement with the defendant in writing in which, after reciting that he, said Walker, had theretofore and intended thereafter to borrow money of the defendant on his own notes or the notes of IT. H. Walker, and that to -secure the payment of such notes he had theretofore and intended thereafter to deposit collateral securities, such securities being given to secure the payment of specific notes, said Walker agreed that, for the purpose of more fully securing the defendant, all and singular the collaterals by him given or to be given as aforesaid should, at the option of the defendant, apply generally to all notes held by the defendant executed by him or said H. H. Walker, and should also apply and be considered collaterals to secure the payment of any and all notes negotiated by the defendant for his account.

It is also proved without contradiction that on the 11th day of December, 1873, at the time Walker paid the defendant said sum of $29,000 in satisfaction of the principal notes for Avhich said trust deed and two $15,000 notes were held as collateral, said contract was in full force; and also, that Walker was then indebted to the defendant for loans, for Avhich the defendant held notes secured by collaterals as contemplated in said agreement, to the amount of nearly $200,000.

The question is, and it is the vital question in the case, so far as this branch of the controversy is concerned, whether the payment of said $20,000 in satisfaction of said principal notes operated to release the deed of trust and two $15,000 notes held as collateral thereto. It is clear that under the contract above mentioned, it did not. The defendant ivas still entitled to hold said collaterals as general collaterals to Walker’s entire indebtedness. But the plaintiff alleges that at the time the payment was made, there was a special agreement or arrangement between the defendant and Walker, that the payment of the principal notes in this instance should be deemed to operate as a redemption by Walker of these collaterals. This presented an affirmative issue which the plaintiff undertook to prove, and which it was indispensably necessary for him to prove in order to maintain his case.

On this point, however, as we understand the record, the plaintiff’s evidence entirely failed. The only persons who were present or participated in the transaction were Walker and the defendant’s president, and neither testifies to any such agreement or arrangement, nor do any facts or circumstances appear in evidence which tend to establish it.

It thus appears' that there was an entire failure of evidence as to a material issue in the case. Under these circumstances, the court properly instructed the jury to find a verdict for the defendant. The judgment Avill be affirmed.

Judgment affirmed.


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    Edward Goodridge et al. v. Jesse Holladay.
    1. Broker—Commissions.—A broker who undertakes to sell property for a certain commission when he finds a purchaser able and willing to purchase at the price fixed, has earned his commission although the sale is never completed, if the failure to complete it is in consequence of a defect of title, and without any fault on the part of the broker.
    2. Same.—The fact that the purchaser insisted upon the insertion of a clause in the contract referring the question of title to the opinion of his lawyer, which was agreed to by the seller, does not change the right of the broker to his commission.
    Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed February 23, 1886.
    Mr. Edward F. Comstock, for appellants;
    cited Simonsons v. Kissick, 4 Daley (N. Y.), 145 ; Pratt v. Hotchkiss, 10 Bradwell, 603; Doty v. Miller, 43 Barb. 529 ; Knapp v. Wallace, 41 N. Y. 477.
    Mr. A. H. Robinson, for appellee ;
    that the transaction must be completed before commissions are earned, cited Wharton on Agency, § 325 ; Story on Agency, § 329 ; Power v. Kane, 5 Wis. 265 ; Earp v. Cummins, 54 Pa. 394; Fraser v. Wyckoff, 63 N. Y. 448.
   Bailey, P. J.

This was a suit brought by Jesse Holladay against Edward Groodridge and others, before a justice of the peace, and taken by appeal to the circuit court, where a trial was had before the court, a jury being waived, and a judgment rendered in favor of the plaintiff for §100 and costs.

The defendants are real estate brokers doing business in Chicago, and the evidence shows that in the year 1883 the plaintiff put into their hands for sale a certain lot in Chicago, and agreed with them that, upon making sale of said lot for $6,250, as the plaintiff testifies, or, if they found a purchaser of the lot at that price, as Goodridge testifies, he would pay them for such service the sum of $100. The defendants afterward reported to the plaintiff that they had a purchaser named Botto, and brought to the plaintiff for his signature a draft of a contract for the sale of said lot to Botto, which con. tract, after acknowledging the receipt of $250 on account of the purchase money, provided, in substance, for the payment by Botto of the remaining $8,000 within thirty days from the date of the contract, and within five days after the delivery of the abstract of title for examination, and for the execution and delivery by the plaintiff, on such .payment being'made, of a good and sufficient warranty deed ; but providing further that upon the failure by Botto to perform on his part within the time specified, said $250 was to be forfeited, and applied inpayment for commissions and services rendered. At the close of the document was the following clause: “Should the title to the said property not be good, then the $250 will be refunded.”

The plaintiff signed the contract, but on its being presented to Botto, the latter insisted upon the insertion of a modification in the last clause, so as to make it read as follows: “ Should the title to the said property not be good in the opinion of W. T. Burgess, then the $250 will be refunded.” This suggested modification of the contract was reported by the defendants to the plaintiff, and he thereupon wrote said words in it and returned it to the defendants, who presented it to Botto and obtained his signature thereto, and also received payment from Botto of said $250, and after retaining $100 for their commissions, paid over the residue to the plaintiff.

Mr. Burgess examined the abstract and gave his opinion that the title was defective. On that opinion Botto declined to proceed with the purchase, and the plaintiff, in pursuance of the terms of the contract, paid back to him the $250. This suit is brought to recover from the defendants the $100 retained by them for their commissions.

There is no substantial conflict in the evidence as to the services which the plaintiff employed the defendants to perform. Their undertaking was “to sell ” or “to find a purchaser for” the plaintiff’s lot. To entitle themselves to their commissions, they were bound to furnish the plaintiff a purchaser, who was ready, willing and able to complete the purchase on the terms proposed. Pratt v. Hotchkiss, 10 Bradwcll, 603. The rule is laid down in Coleman’s Executors v. Meade, 13 Bush, 358, as follows: “ The broker undertakes to furnish a purchaser and is bound to act in good faith in presenting a person as such, and when one is presented, the employer is not bound to accept him or to pay the commissions, unless he is ready and able to perform the contract on his part according to the terms proposed ; but if the principal accepts him, either upon the terms previously proposed or upon modified terms then agreed upon, and a valid contract is entered into between the principal and the person presented by the broker, the commission is earned,”

There is no complaint that the defendants did not act in good faith in presenting Botto to the- plaintiff as a purchaser, nor is it pretended that Botto was not ready and able to purchase the lot and pay the agreed price, and it appears that the plaintiff accepted him as a purchaser and entered into a valid contract with him upon terms which were satisfactory to himself. The sale of the lot failed, not by reason of any act or omission of the defendants, or of any failure on their part to do what they were employed to do, but because it afterward turned out that the plaintiff’s title to the lot was imperfect. It seems clear that under these circumstances the defendants were entitled to their commission.

A broker who undertakes to sell property for a certain commission, when he finds a purchaser able and willing to purchase at the price fixed, has earned his commission, although the sale is never completed, if the failure to complete it is in consequence of a defect of title, and without any fault on the part of the broker. Doty v. Miller, 43 Barb. 529 ; Glentworth v. Luther, 21 Id. 145 ; Holly v. Gosling, 3 E. D. Smith, 262 ; Knapp v. Wallace, 41 N. Y. 477.

But it is claimed that because Botto insisted upon the insertion of a clause in the contract referring the question of title to the opinion of Mr. Burgess, and making his opinion conclusive of that question, Botto was not a purchaser able and willing to make the purchase on the terms proposed by the plaintiff, within the rule above stated. It may be answered that this condition of the contract was agreed to and adopted by the plaintiff as satisfactory to him, and the purchaser was accepted with this modification of the terms originally proposed. |

But the clause submitting the question of title to the decision of Mr. Burgess was only a mode adopted by the parties for determining that question .in a speedy and convenient manner, and in such way as to be conclusive upon themselves. Mr. Burgess was, in effect, an arbitrator or umpire mutually selected to determine the sufficiency of the title, and by his decision both parties agreed to be bound. There is no suggestion in the record that Mr. Burgess did not act in perfect good faith, or that he did not reach a true and just conclusion, or that the title was not in fact imperfect. The plaintiff alone was responsible for the defect in his title, and it was therefore through his fault alone that the sale was not completed. The judgment of the court by which the plaintiff has recovered back from the defendants the commissions which they had retained out of the moneys received from Botto is wholly unsupported by the evidence, and it will therefore be reversed and the cause remanded.

Judgment reversed.


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    Adolph D. Godard et al. v. Abraham Lieberman.
    Forcible entry and detainer—Parties defendant.—In an action of forcible detainer, the wrongful possession of the defendant is of the gist ofj the action. The judgment in this case can not be sustained as a portion of the defendants are not proved to be in possession-^and as the judgment is entire and indivisible, if reversed as to them it mrist, be reversed as to all the defendants.

      Appeal from the County Court of Cook county ; the Hon. .Richard Prendergast, Judge, presiding.
    Opinion filed February 23, 1886.
    Mr. Joseph Pfirshing, for appellants ;
    that the wrongful possession is of the gist of the action, cited Hersey v. Westover, 11 Bradwell, 197; Murphy v. Dwyer, 11 Bradwell, 246.
    Messrs Gary, Cody & Gary, for appellee.
   Bailey, P. J.

This was an action of forcible detainer, brought by Abraham Lieberman against Joseph Barbier and twenty-two others, to recover possession of lot 20, block 111, School Section addition to Chicago. At the trial before the court, a jury being waived, all the defendants, with the exception of Barbier, were found guilty of forcible detainer of said premises, and judgment was rendered against them for a restitution of the premises and for costs, and all the defendants convicted have appealed to this court.

The plaintiff claims title to said lot by grant from the heirs and legal representatives of Henry Ritchie, deceased. Barbier had been in possession of said lot for several years, under a lease from the executor of said Henry Ritchie, and it appears that some months prior to the commencement of the suit he had assigned his leasehold interest in the premises to Adolph D. Godard, another of the defendants. Four houses were standing on the lot, built, as it seems, by Barbier, and these houses were in the actual occupancy of a large number of persons of Italian nationality, said occupants being in possession as tenants of Barbier and subsequently of Godard.

We are inclined to the opinion that there was sufficient evidence to warrant the court in finding that the tenancy under the lease to Barbier had been terminated before the commencement of the suit. Some of the defendants are shown to have been in possession of the premises or some part of them, at the time the suit was brought, as tenants of Godard. As to a considerable number of them, however, the record contains no such proof. The only witness by whom the plaintiff sought to identify the defendants and to prove their occupancy of the premises, testifies, positively, that several of them were not occupants of the premises, and as to several others, he testifies that he does not know them and has no knowledge of their being in possession. This radical defect in the proof is not obviated in any material degree, so. far as wo can discover, by any facts or circumstances appearing in evidence.

The statute gives to a lessor an action of forcible detainer when his lessee, or any person holding under him, holds possession of the demised premises without right, after the determination of the tenancy. It is plain that the wrong iul possession of the defendant is of the very gist, of the action. Unless that is shown,, no recovery is authorized. We arc unable to see then how the judgment in this case can be sustained as to the defendants not proved to be in possession, and as the judgment is entire and indivisible, if reversed as to them, it must be reversed as to all the defendants convicted.

There was some evidence tending to show that the several occupants of the premises in controversy held possession of different parts in severalty. If such was the fact, the fifteenth section of the statute in relation to forcible entry and detainer required that the judgments should he several, according as the actual holdings of the defendants were respectively found to be.

As the evidence does not sustain the judgment, it will be reversed and the cause remanded.

Judgment reversed.