text:
    State National Bank of Springfield, Appellee, v. The United States Life Insurance Company, Appellant.
    1. Insurance—who not necessary parties to bill to enforce specific performance. The insured is not a necessary party to a hill by a beneficiary to enforce the delivery of policies agreed by the insurer to be delivered.
    2. Insurance—when statements of general agent binding upon company. The statements of a general agent of an insurer are binding upon it where no limitation of his authority is brought to the notice of the beneficiary who has acted upon the faith of such statements.
    Bill in chancery. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed June 11, 1908.
    William A. Elliott, Conkling & Irwin and Isham, Lincoln & Beale, for appellant.
    Patton & Patton, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The original bill filed by the State National Bank of Springfield, Illinois, appellee, against The United States Life Insurance Company, a New York corporation, appellant, prayed the specific performance of an alleged insurance contract to issue and deliver to appellee two certain endowment policies maturing December 22, 1905, upon the life of George M. Brinkerhoff. Subsequently, in March, 1906, appellee filed its supplemental bill, alleging that the said policies would have then matured, if they had been issued by appellant as demanded, and praying for a money decree against appellant for the value of said policies. After answers filed to said original and supplemental bills and the filing of replications to said answers, the cause was referred to the master in chancery to take and report the evidence. The cause was heard by the chancellor upon the evidence reported by the master, together with certain additional evidence heard in open court, and a decree was entered against, appellant for the sum of $7,424.30.

The material facts out of which this controversy arises are substantially as follows: On December 22, 1890, appellant, in pursuance of applications to it therefor, issued to George M. Brinkerhoff, then fifty-one years of age, two policies of insurance numbered, respectively, 65870 and 65871 for $10,000 each, upon the ten-year continuable term plan, payable in the event of his death within ten years to his wife, Isabella G. Brinkerhoff. Among other conditions and agreements appearing on the policies, was the following:

“VI. This insurance is renewable, at the end of the specified period (under a new policy for same amount and of like tenor as this policy, or for same amount under any form of policy then issued by tins company) at the option of the holder hereof, without medical examination, provided the holder hereof makes written application for such new policy, and, by a proper in-strument in writing, surrenders this policy to the company, at its said office, while in force, and pays the premium upon such new policy according to the terms thereof. The legal holder or holders of this policy may, without medical examination, change this policy at any time during its continuance in force to any other plan issued by said company at such time by payment to the company of a sum equal to the difference in premiums with interest at the rate of four per cent, per annum compounded. ’ ’

On October 19, 1891, Brinkerhoff joined by his wife, assigned these policies to appellee, and the written assignment was forwarded to. and filed by appellant in New York. The first two annual premiums amounting to $601.40, were paid by Brinkerhoff, and the subsequent eight annual premiums were paid by appellee. Prior to and during the time the policies were in force, one J. H. Strong was the manager of appellant for Illinois, with headquarters in Chicago, and to him, as such manager, all premiums were paid, and with him appellee conducted the negotiations, correspondence and communications relative to the said policies and their surrender. On September 14,1892, in reply to an inquiry by appellee relative to said policies, Strong, referring to the form of said policies, wrote to appellee, in part, as follows: “It is the best policy that is today written for insurance as a protection, and yet have the option to change to any form that is written, and always endowment at original age issued, viz., 51, and in addition thereto have credit for all money that may be paid to apply upon any policy that may be hereafter selected. ”

Subsequently, the president and cashier of appellee bank had several interviews with Strong, regarding the best disposition to be made of said policies at the termination of the ten-year period, viz: December 22, 1900, in which interviews Strong advised appellee to continue the insurance in the same form of policies for the further period of five years, and that after paying five annual premiums in addition to what had been paid on the original policies, at the expiration of what would then be fifteen years, appellee could change to fifteen-year participating endowment policies, bearing the date of the original policies, December 22,1890, and at the premium rate for fifty-one years, which was then the age of Brinkerhoff, upon payment of the difference in premiums, with four per cent, interest per annum compounded. In pursuance of said advice from Strong, appellee, together with George M. Brinkerhoff, made their applications to appellant for the issuance of the policies in controversy, as follows:

“To the United States Life Insurance Company in the City of New York:
The undersigned owners of Policy No. 65870, on the life of George M. Brinkerhoff, hereby request the United States Life Insurance Company in the City of New York to issue a policy in place and renewal thereof, of like amount and tenor, for another term of ten years, and herewith surrender the said policy to be cancelled on the issue of said new policy; and agree to pay the annual premium of $609.20 on the 22nd day of December in each year.
And in consideration thereof said undersigned do hereby constitute the original application for said policy No. 65870 together with this present application, the basis and part of the contract of insurance under the new policy hereby solicited.
Dated at Springfield, 111., December 18, 1900.
State National Bank, Springfield, Illinois, Assignee. J. P. Bunn, Cashier, and George M. Brinkerhoff.”

The application relating to policy No. 65871 was identical in form with the foregoing.

In pursuance of said applications, appellant, on December 22,1900, issued two policies of insurance, numbered respectively 100,294 and 100,295, for the sum of $10,000 each, upon the life of George M. Brinkerhoff, whereby it contracted to pay “tb the State National Bank of Springfield, Ill. (payee), assignee, its successors or assigns” the face of the policies upon satisfactory proof of the death of Brinkerhoff within ten years from the date thereof.

Written in ink on the margin of the first page of said policies appears the following, except as to the numbers, respectively, of the original policies: “This policy is issued pursuant to the contract of insurance made December 22, 1890, as expressed in Policy No. 65870, and in place of said policy, and for that reason does not require a tax stamp under any statute of the United States.”

Under the printed designation “Benefits and Conditions Referred to Herein,” in said policies, the sixth clause entitled “Option For Renewal Or Change,” is as follows:

“VI. At any anniversary hereof, this policy then being in force, it may be renewed for another term or changed to any other participating plan issued by the company, without medical examination, upon payment of the premium corresponding to the advanced age of the insured; or to a participating policy bearing original date, and at the premium rate of the original age, upon payment of the difference in premiums, with four per cent, interest per annum, compounded.”

And the annual premium rates per $1,000 of insurance on the various plans available to the holder of the policies under the sixth clause, are tabulated thereon according to different ages from twenty-five to sixty-five, inclusive, as follows:

“Rates Referred to in Benefits and Conditions.
Clause VI.
Annual premium rates per $1,000 of insurance in various plans:
5 pay-10 pay-15 pay-20 pay-Endow-Endow-Endow-Life ment ment ment ment ment in ment in ment in life life life life 10 yrs. 15 yrs. 20 yrs.
25 $ 19.89 $ 73.87 $ 42.56 $ 32.34 $ 27.39 $103.91 $ 60.02 $ 47.68 25 51 49.40 134.80 80.14 62.98 55.38 113.64 77.77 61.90 51 65 102.55 199.48 129.18 110.16 104.10 143.16 114.16 104.91 65”

In this printed table the numerals 51 (referring to the age of the insured) and the numerals on the same line (referring to the annual premium rates at the age of fifty-one years for insurance on the various plans designated) are underscored with red ink.

The policies as above described were delivered to appellee by Strong, and appellee, thereafter, paid the annual premiums thereon amounting to $1,218.40 for each of the years ending December 22, 1900,1901, 1902 and 1903, and, on December 22, 1904, being an anniversary period mentioned in the policies, appellee, having elected to exercise its supposed option to surrender said policies and obtain in lieu thereof two fifteen-year participating endowment policies for $10,000 each upon the life of George M. Brinkerhoff, as of the age of fifty-one years to mature December 22, 1905, to that end tendered to appellant at its office in New York City, the sum of $17,000 as the amount necessary to cover the difference in premiums between the two plans of insurance with four per cent, interest compounded, which tender was refused by appellant, and appellant then and since declined to issue said policies. Appellant’s refusal of the tender and its declination to issue said policies was based solely upon the ground that by the terms of the contracts of insurance appellee was not entitled to make any such demand or have issued to it any such policies.

It being disclosed by the evidence that the original policies, bearing date December 22,1890, were assigned by the Brinkerhoffs to appellee as collateral security for an indebtedness due to it from George M. Brinkerhoff, and that such indebtedness still continues to exist, it is urged on behalf of appellant that the Brinkerhoffs have a beneficial interest in said policies and are, therefore, necessary parties to this proceeding. If the original and supplemental bills filed in this case sought to enforce said original policies and determine the rights of the parties thereunder there would be some force in appellant’s position, but it is conceded by appellant that the original policies were surrendered to it by appellee and Brinkerhoff and cancelled on December 22, 1900, when new policies in lieu thereof were issued to appellee as payee and assignee, and that, thereupon, all rights of the parties under said original policies ceased.

In the brief and argument filed on behalf of appellant it is said: ‘ ‘ For the determination of the present rights of the parties we can now look only to those, instruments which under the contract of 1890 are vital parts thereof today. These instruments are the application of 1890, the applications or requests of 1900, and the second term policies. The first term policies are absolutely dead, and in interpreting the contract in its present condition anything in the first term policies contained must not be considered, because the vital principles thereof have been transferred to and are now contained in the second term policies. The first term policies have at the request of appellee and the insured, been delivered up and cancelled. The second term policies by express terms have taken the place of the first, and the latter are now for the purpose of this case as though they never had existed. ’ ’

It is admitted by appellant that appellee, as a creditor of Brinkerhoff, had an insurable interest in his life, and the policies of insurance here involved having been issued to appellee directly, as payee and assignee, the beneficial interest therein, if any, of the Brinkerhoffs does not concern appellant, but it is a question to be determined solely between the Brinkerhoffs and appellee. The contracts in question, evidenced by the policies issued December 22, 1900, are between appellant and appellee, and the Brinkerhoffs are not necessary parties to a proceeding instituted to determine the rights under said contracts of the respective parties.

What we have said upon the question of the absence of necessary parties, also answers the next contention of appellant, that the consent of the Brinkerhoffs was necessary to enable appellee to exercise its alleged right of election to have issued to it the form of policies demanded.

It is next urged on behalf of appellant that the chancellor erred in permitting appellee to introduce in evidence letters and statements by Strong, the general agent or manager of appellant, to the president and cashier of appellee, to the effect that after paying five annual premiums on the policies issued December 22, 1900, appellee could surrender the same and obtain in lieu thereof fifteen-year participating endowment policies as of the date of the original policies, to-wit: December 22, 1890, based upon the assured’s age at that date, to-wit: fifty-one years; that upon the maturity of the fifteen-year policies on December 22, 1905, appellee could then demand payment in full upon said policies; and that like options had been exercised by and allowed to other persons having similar policies. The grounds of objection to this evidence are that it was an attempt by Strong, the agent of appellant, to vary the terms of the contracts in writing; that it was an attempt to vary, explain and add to the terms of the written contracts by parol evidence; and that it deprived appellant of a valuable property right, namely, the right to enter freely into contracts limiting the powers of its agents in a reasonable manner, in direct violation of the fourteenth amendment to the federal constitution.

The questions presented by these objections are of such wide scope that a full discussion is here impossible, and we must, therefore, content ourselves with only a brief statement of our views.

Strong was the general agent or manager of appellant for the State of Illinois, and was acting in that capacity when he wrote the letters and made the statements in question, relying upon the truth of which appellee shaped its course in surrendering the original policies and applying for the issuance of the policies here involved. The other general officers of appellant were in the city of New York and practically inaccessible to appellee.

No limitation upon the authority of Strong, as such agent, is shown to have been brought to the notice of appellee, except such as was contained in the general provisions embodied in the applications and policies, to the effect that no information or statement, unless contained in the application, made, given, received or required by any person at any time should be binding on the company, and that no person other than the president, together with the secretary or actuary, should have power to alter or waive any contract or condition in behalf of the company.

A stipulation or condition purporting to deprive all of the officers and agents of a corporation of authority to act cannot be - effective, because it would result in the termination or suspension of the exercise of functions given to the corporation by law, and which it has no power to abdicate. Johnson v. Aetna Ins. Co., 107 Am. St. Rep. 92, note on page 102, and cases cited.

The sixth clause, heretofore quoted, of the conditions and agreements referred to in the original policies of insurance issued December 22, 1890, whereby appellee was given the option to surrender said policies at the end of ten years and apply for new policies in lieu thereof, is conceded by appellant to have entitled appellee to demand and receive the form of policies which it subsequently demanded, and the statements and letters of Strong insofar as the same related to said policies, were, therefore, in accord and not at variance therewith. Insofar as such statements and letters applied to the policies in question, issued December 22, 1900, they were properly admitted in evidence, not for the purpose of varying or contradicting the terms of the said insurance contracts, but, when taken in connection with the form and provisions of the contracts actually issued to appellee and the fact that similar settlements had been made with persons holding like policies, as tending to show the practical construction which appellant, through its general agent and by its acts, had placed upon the same or similar contracts. Such evidence was competent for the purpose of enabling the court to ascertain the intention of the parties and to construe the contracts in accordance with such intention. Whalen v. Stephens, 193 Ill. 121.

Furthermore, an examination of the provisions in the policies and the form in which said policies were delivered to appellee, excluding from consideration the evidence complained of, warrants, in onr opinion, the construction put upon them by appellee, and by the chancellor in the decree which was entered.

The applications for the policies in question constitute the original applications for the policies issued December 22, 1890, the basis of and part of the contract of insurance under the new policies to be issued. The policies, upon the first pag’e, provide that they are “subject to the benefits and conditions” and “notice” on the succeeding pages; they bear a written indorsement on the margin of the first page, stating: “This policy is issued pursuant to the contract of insurance made December 22, 1890, as expressed in Policy No.” (here is given the number of the original policy) and in place of said policy; a printed clause relating to “options for renewal or change” under the general designation, “benefits and conditions referred to herein,” provides that at any anniversary thereof the policy may be changed to a participating poJiey bearing original date and at the original age, upon payment of the difference in premiums with four per cent, interest compounded; and. on the fourth page, under the designation “Bates referred to in benefits and conditions,” appears the table of ages and rates, heretofore mentioned, with the figures fifty-one and the figures following on the same lines, as heretofore described, underscored with red ink.

The evidence in the record justifies the conclusion that the policies were in their present form when delivered to appellee, and that the underscoring with red ink, as described, was done at the home office of appellant in New York City, by some one in its employ.

Considering the references in the policies in question to the original application and contracts of insurance, the original date and original age, and the table of ages and rates, conspicuously marked to correspond with the age of Brinkerhoff when the original policies were issued, we think the contracts should be construed as contended for by appellee.

Counsel for appellant refer to the amount found by the decree to be due to appellee, as a subordinate issue in the case. According to appellee’s computation as made by the witness Bunn, the amount due from appellant at the date of the decree was $10,394.69. Hubbell, the actuary employed by appellant, testified that the amount due appellant December 22, 1905, for the difference in premiums compounded at four per cent, was $16,377.49, and that the value at that time of a fifteen-year participating endowment policy for $20,000 issued in 1890, would be $23,400. This, upon the theory that appellee was entitled to a settlement as alleged in its supplemental bill, would make the amount due appellee on December 22, 1905, $7,022.51, which, computing interest from March, 1906, when the supplemental bill was filed, to the date of the decree upon the amount due according to Hubbell’s estimate is approximately correct.

The decree of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    Harriet E. Penney, Appellee, v. Charles T. Johnston, Appellant.
    1. Malicious prosecution—what competent in mitigation of damages to show good faith. Other thefts than that made the basis of the prosecution are competent in mitigation of damages and to show good faith.
    2. Malicious prosecution—what competent in mitigation of damages and to show good faith. Information as to alleged thefts obtained from others may be shown in mitigation of damages -and to establish good faith.
    3. Malicious prosecution—when instruction in action for, erroneous. In an action for malicious prosecution, an instruction is erroneous which authorizes the jury to render its verdict against the defendant because of his having employed private counsel to assist the state’s attorney in the prosecution of the indictments, irrespective of the fact, which there was evidence tending to show, that such private counsel was employed by the defendant at the instance and request of the state’s attorney.
    4. Malicious prosecution—character of disclosure required to counsel. In order to sustain a defense to an action for malicious prosecution predicated upon the advice of counsel, it need not appear that the defendant in the action, in making his disclosure to counsel, acted in a judicial or entirely impartial manner; it is enough if he acted' as a reasonable and prudent person would ordinarily act under like circumstances.
    5. Attorney and client—when knowledge of former not imputable to latter. Generally, the knowledge of the attorney is imputable to his client, and the client is not permitted to reap an advantage secured to him by the fraudulent act of his attorney, but this principle is not applicable in a case where the client acting honestly and in good faith upon information obtained from his attorney, institutes and prosecutes criminal proceedings against another.
    6. Instructions—must not give undue prominence to particular facts. An instruction is objectionable which singles out and gives undue prominence to certain,facts and ignores others.
    7. Instructions—must not assume facts in dispute. An instruction is improper which assumes the existence of facts in dispute.
    8. Instructions—what issues should not be submitted. An instruction should not submit to the jury an immaterial issue.
    9. Instructions—effect of refusing cautionary. It is within the sound discretion of the court to give or refuse instructions which belong to the class known as cautionary; the refusal of such an instruction is not ground for reversal.
    10. Instructions—must not invade province of jury. An instruction is properly refused which invades the province of the jury, is argumentative and misleading.
    Action in case for malicious prosecution; Appeal from the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed June 11, 1908.
    Hugh Crea, Hugh W. Housum and John E. Hogan, for appellant; John E. Hogan and James T. Whitley, of counsel.
    John Fuller, G. K. Ingham, J. C. McBride and Buckingham & Cray, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

At the May term, 1905, of the Circuit Court of Macon county the grand jurors in and for said county returned six indictments against appellee, Harriet Penney, and her daughter, Etta Penney, charging them with larcény of certain goods, alleged to be the property of appellant, Charles T. Johnston. A trial of said defendants upon said indictments resulted in a verdict of acquittal, and thereafter said Harriet E. Penney instituted her suit against appellant for malicious prosecution. After one trial of said cause in Macon county, the venue was changed to Christian county, and a second trial there by jury resulted in a verdict and judgment against appellant for $2,500.

The record in the case is very voluminous and the facts involved are many and complicated. As the judgment must be reversed for errors of law in excluding competent evidence and in the rulings upon instructions, we shall not attempt to set out all the facts in detail, and shall withhold onr views upon the merits of the controversy.

Etta Penney, the daughter of appellee, was a clerk in the dry goods store of appellant in Decatur during the time appellant claims to have missed certain goods from his stock. Appellant claims that his suspicions were directed against said Etta as having stolen said goods with the assistance and connivance of her mother, the appellee. All of the goods claimed to have been so stolen and found by appellant in the possession of Etta, or in her trunk, were not described in the indictment, the indictment having been so drawn by the state’s attorney as to include the description of only such goods as he selected. Upon the trial the court refused to permit appellant to introduce evidence tending to show that appellee and her daughter had, prior to the finding of the indictments, stolen goods other than those specifically described in the indictments, a list of which goods appellant had presented to the grand jury. This was error. While such evidence did not constitute substantive proof of the existence of probable cause by appellant of procuring the indictments and instituting the prosecution thereunder, as alleged in the declaration, the evidence was relevant as bearing upon the question of appellant’s good faith, and in mitigation of damages.

The court refused to permit the witness, Blossom, to state what he had said to appellant, prior to the finding of the indictments relative to information which he (Blossom) claipied to have obtained from one Zoe La Brash, tending to show that appellee and her daughter were guilty of the alleged larceny. For the purposes heretofore stated, we think the evidence was competent.

For the same reasons, the assistant state’s attorney should have been permitted to state why he did not describe in the indictment all of the articles mentioned in the list presented by appellant to the grand jury. The court did not err in excluding from the jury the list of goods prepared by the witnesses Brown and Sullivan and claimed to have been found in a trunk belonging to Etta Penney. Neither was it error to exclude the transcript of the shorthand notes by the stenographer, of the interview between appellee and her daughter and appellant and his attorney, Weber.

Several of the instructions given at the instance of appellee are subject to criticism. The first instruction makes appellant responsible for false testimony, if any, given before the grand jury by witnesses other than himself, without his knowledge or procurement. It also makes appellant liable for having employed private counsel to assist the state’s attorney in the prosecution of the indictments, irrespective of the fact, which there is evidence tending to show, that such private counsel was employed by appellant at the instance and request of the state’s attorney. Furthermore, the instruction assumes that appellant procured the indictment and prosecution of appellee.

The second instruction is erroneous because it imputes to appellant the knowledge of his attorney of the circumstances under which an alleged confession of guilt by appellee and her daughter was obtained. Generally, the knowledge of the attorney is imputable to his client, and the client is not permitted to reap an advantage secured to him by the fraudulent act of his attorney, but this principle is.not applicable in a case where the client acting honestly and in good faith upon information obtained from his attorney, institutes and prosecutes criminal proceedings against another. Counsel for appellee recognized this exception to the general rule in drafting the fourth instruction offered by them, wherein the burden was cast upon appellee to show that appellant knew of the duress, fear or fraud, if any, exercised by his attorney upon appellee and her daughter, in procuring the alleged confession.

The third instruction is technically inaccurate, but as the inaccuracy is .evidently due to a clerical error, which will doubtless be corrected upon another trial, it is not necessary to notice it further.

The fourth instruction is not subject to the criticism that there is no evidence in the record to support it, but it is objectionable as singling out and giving undue prominence to certain facts and ignoring others. Calef v. Thomas, 81 Ill. 478.

The fifth instruction erroneously assumes that appellant procured the indictment to be returned and the prosecution to be instituted.

The sixth instruction is not erroneous for the reasons urged. While, as we have held, evidence tending to show the theft by appellee and her daughter of-goods belonging to appellant other than those described in the indictments was competent for certain purposes, its relevancy was limited to those purposes, and any reference to such other goods in said instruction would have been out of place.

The seventh instruction was properly given.

The tenth instruction informed the jury, in substance, that in order to constitute probable cause the facts and circumstances must be such as to warrant an impartial and reasonably prudent and cautious man in believing appellee guilty of the offense charged. This instruction, by the use of the word “impartial” requires as necessary to the consideration and determination by appellant of the facts and circumstances involved, an element for which there is no sanction in law or reason. Appellant was not required to approach the investigation and determination of the facts involved in a judicial or entirely impartial frame of mind. The true rule here applicable only required that appellant should have acted as a reasonable and prudent person would ordinarily act under the like circumstances. Spear v. Hiles, 67 Wis. 361; Clark v. Hill, 96 Ill. App. 383.

The eleventh instruction is not subject to the criticism that it did not specifically call the attention of the jury to evidence introduced by appellant in support of his reputation for truth and veracity. If the further contention of appellant that by referring to the impeachment of a witness or witnesses the attention of the jury was necessarily specially directed to appellant, who was the only witness sought to be directly impeached, and the instruction was, therefore, erroneous, is sound, no instruction could properly be given upon the subject, unless the evidence of all witnesses and parties to the controversy, was sought to be impeached by testimony tending to show that their reputation for truth and veracity was bad. The instruction complies with the rule that instructions upon the subject of the credibility of witnesses should be framed in general terms. N. Chicago St. R. R. Co. v. Wellner, 206 Ill. 272. As bearing upon a further criticism of said instruction, and a like criticism of the first, eleventh and fifteenth instructions, it may be said that it was held in Chicago City Ry. Co. v. Ryan, 225 Ill. 287, that in the absence of an instruction defining the meaning of the terms “successfully impeached,” or “impeached,” such instructions should not be given. "We perceive no objection to the eighteenth instruction.

Objection is made to the-modification by the court of certain instructions offered on behalf of appellant. The first instruction as offered infringed the province of the jury and was properly modified. The modification of the ninth instruction was improper wherein the court added matter to the instruction as offered. The modification by the court of the tenth instruction by inserting the word “alone” was proper.

The seventeenth instruction as offered submitted an immaterial issue to the jury and was properly modified by striking out the portion complained of.

It is urged that certain instructions offered by appellant were improperly refused by the court. The fifth instruction belongs to the class known as cautionary instructions, the giving or refusing of which rests in the sound discretion of the court. Donk Bros. Coal and Coke Co. v. Thil, 228 Ill. 233; Chicago Union Traction Co. v. Groulding, 228 Ill. 164. The eighth refused instruction is erroneous in so many particulars that time and space forbid a detailed review of it. It infringed the province of the jury and was argumentative and misleading. The instruction was properly refused.

The fact that appellant may have been telephoned to by some person in charge- of the sheriff’s office that he was required to appear before the grand jury did not wholly and conclusively determine that his appearance before the grand jury was not voluntary. The ninth refused instruction was, therefore, properly refused.

The tenth refused instruction insofar as it stated a correct rule of law was sufficiently covered by other instructions given to the jury.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Henry Hollingshead, Appellee, v. Wabash Coal Company, Appellant.
    Mines and Minees Act—what not defense to action under. Contributory negligence is not a defense to an action instituted under the Mines and Miners Act.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed June 11, 1908.
    Conkling & Irwin, for appellant.
    Patton & Patton, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment against appellant for $2,750 as damages for injuries alleged to have been occasioned by the wilful failure of appellant to comply with certain requirements of the Mines and Miners Act. The case was submitted to the jury upon the amended third and fourth counts of the declaration. The material allegations of these counts of the declaration are, that defendant’s mine examiner when he discovered that a dangerous condition existed in plaintiff’s working place, wilfully failed to place a conspicuous mark thereat, as notice to all men to keep out, and that the defendant wilfully allowed the plaintiff to enter the mine to work therein, not under the direction of the mine manager, before all conditions were made safe. The only grounds relied upon by appellant for a reversal of the judgment are, that the court refused to give to the jury peremptory instructions requested at the close of the evidence offered by the plaintiff and at the close of all the evidence in the case and that the court erred in giving and refusing certain instructions.

On February 9, 1906, appellee was employed by appellant, in its coal mine as an entry driver. He had then been engaged in driving an entry since January 1, 1906, and had driven it a distance of about twenty-six feet.' It was customary in appellant’s mine to support the roof of an entry by cross bars placed in notches cut in the rib of the entry every three or four feet, and timbermen were employed by appellant to do this work. At 4 o ’clock in the morning of February 9, 1906, the mine examiner employed by appellant examined the entry in question and sounded the roof to determine its condition. He testified that he found the roof a little drummy and determined that a cross bar was required to support it. He marked the figures “2-9” on the wall of the entry to indicate the month and day of his visit, but made no conspicuous mark thereat as notice to all men to keep out. Upon the completion of his examination he made a report of the condition of the mine in a book kept for that purpose and known as the “Daily Mine Inspection Beport,” as follows:

‘1 February 9,1906. I hereby certify that in accordance with the mining laws of this 'State, I have this day duly examined this mine before commencement of work herein and find the same free from dangerous gases, the air currents circulating properly, no recent falls or obstructions in the room or roadways, and the entries and all working places in a safe condition for beginning work except Pawlitzer’s and Swatzer’s need cleaning and timbering, Hopper has slate needs barring, Stutches has slate needs bars, Frazier and Lonnie needs bars on 7th and 8th north, also on 11th north, Johnson and Deils room needs fixing up, old man Hollingshead needs bars.
Henry Gray, Mine Examiner.”

It is conceded that the person referred to in the report as “old man Hollingshead” is the appellee, and that the report refers to the place in which he was then working. The evidence is conflicting as to the distance from the face of the entry to the nearest cross bar then supporting the roof, the witnesses called on behalf of appellee fixing the distance at sixteen feet while those called on behalf of appellant fixed the distance at seven feet. On the same morning, following the examination referred to by the mine examiner, appellee was permitted to enter the mine about 7:30 o’clock for the purpose of continuing work, not under the direction of the mine manager. He had worked in the entry a short time when Smock and Wilcox, the timbermen employed by appellant, went there for the purpose of cutting the necessary notches and placing a cross bar to support the roof. The evidence tends to show that appellee then complained that the roof of the entry was not safe and that Smock told him: “If you think the place is not safe, get out and stay out until we timber it.” Appellee then went to his tool box in another entry, where he ate his lunch, and shortly thereafter Smock and Wilcox were called away temporarily to do some work in another part of the mine. After the latter had gone away appellee returned to the entry and was engaged in drilling a hole with his machine in the rib of the entry, preparatory to firing a shot, when a large piece of slate in the roof fell upon him inflicting the injuries complained of.

Predicated upon the testimony of the mine examiner that when he examined the working place of appellee he did not in his judgment consider that it was in a dangerous condition but merely that it was liable to become dangerous, it is insisted by appellant that'there was no occasion for the mine examiner to make a conspicuous mark as notice to all men to keep out, and that his failure to do so was not wilful within the meaning of the statute; that at most his failure to determine the condition to be dangerous was only an error of judgment on his part, and that there is a distinction between a dangerous place and a place that may in the future become dangerous if proper care is not taken of it. The distinction sought to be made is somewhat refined but if it exists in fact it has no place in this case. The mine examiner testified that when he went into the entry that morning the condition of the roof was such that in his judgment it needed timbering and that a prop or bar was necessary to make the place safe. In the face of such testimony by the mine examiner, his further statement that without a bar or prop the place might become dangerous is meaningless. Furthermore, the report of the mine examiner, heretofore quoted, expressly excepts the place in which appellee was working from the entries and working places in the mine found by him to be in a safe condition. His report in the connection in which it is made, that “old man Hollingshead needs bars” was equivalent to a finding by him that the working place of appellee was then unsafe without bars. The entry in which appellee was working and which was his working place was manifestly unsafe, and it is conceded that no conspicuous mark was placed thereat and that appellee was permitted to enter the mine to work therein, not under the direction of the mine manager, before all conditions were made safe, but it is urged that the wilful failure of appellant to comply with the requirements of the statute in that regard, cannot be said to have been the proximate cause of appellee’s injury, because the timbermen were then working in the entry and had cautioned appellee to keep out if he did not consider the place safe. If we apprehend the position of counsel it merely amounts to a claim that appellant can avoid liability for an injury resulting from its wilful failure to comply with the requirements of the statute, by showing that appellee was guilty of contributory negligence or that appellant had substituted a different method than that prescribed by statute for the protection of appellee. Neither of these positions is tenable. Contributory negligence of the injured person is not a defense to an action based upon the alleged wilful failure of a mine operator to comply with the requirements of the Mines and Miners Act in the respects here involved (Kellyville Coal Co. v. Strine, 217 Ill. 516), and a mine operator is not authorized to substitute precautionary measures in lieu of those required by statute. Eldorado Coal Co. v. Swan, 227 Ill. 586. In the absence of conspicuous marks at his working place, as notice to appellee of the dangerous condition of the roof of the entry and to keep out, he was justified in assuming that his working place had been examined and found to be free from danger and that he might safely work therein. Kellyville Coal Co. v. Strine, supra.

It is conceded that appellee was permitted to enter the mine to work therein, not under the direction of the mine manager, before all conditions had been made safe. The directions, if any, given to appellee by the timbermen were not equivalent to or a substitute for directions required by the statute to be given by the manager. The wilful failure of appellant to comply with the requirements of the statute in the respects mentioned must be held to have been the proximate cause of appellee’s injury, and the fact that, prior to his injury, appellee was temporarily absent from his working place, while eating his lunch, and that he was cautioned by the timbermen to keep out if he did not think the place was safe, did not operate to establish an efficient intervening cause sufficient to break the chain of causation which originated with the wilful violation by appellant of the requirements of the statute. The peremptory instructions offered on behalf of appellant were properly refused by the court.

What we have heretofore said relative to the authority of appellant to substitute a different method of precaution than that prescribed by the statute, and the effect of the cautionary warning by the timbermen to appellee, disposes of the objections urged to the action of the trial court in giving the fifth instruction offered by appellee and in refusing the thirteenth, fourteenth and sixteenth instructions offered by appellant.

There is no reversible error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Ida F. Ater, Appellee, v. Fred H. Dobson, Executor, Appellant.
    1. Contbacts—when, for distribution of estate, valid. Held, that the agreement involved in this case, which provided for the distribution of an estate, was deliberately entered into, was valid and binding.
    2. Admiuistbation of estates—when widow’s award relinquished. Held, that the contract in question in this case was intended to and did operate as a relinquishment of the right to a widow’s award.
    Objections to executor’s report. Appeal from the Circuit Court of Piatt county; the Hon. W. G. Cochean, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.-
    Opinion filed June 11, 1908.
    Rehearing denied November 19, 1908.
    James L. Hicks, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This appeal is prosecuted by Fred H. Dobson, executor of the last will and testament of Franklin Ater, deceased, to reverse an order of the Circuit Court of Piatt county, sustaining certain objections interposed by appellee, Ida F. Ater, to-the final report of said .executor, and allowing to said appellee the sum of $976 as her widow’s award in the estate of her deceased husband, Franklin Ater.

Franklin Ater died June 10, 1905, leaving his last will and testament which was duly probated. By the second clause of his will the testator bequeathed to appellee, his wife, all his household furniture and personal property, except money and notes, contained in his dwelling. By the third clause of the will he bequeathed to his daughter, Bertha, $3,000. The fourth clause provided that after the payment of the said legacies and funeral expenses, all the balance of his personal property, if any, should be divided equally between his wife, Ida F. Ater, and his daughters, Adella May Peck, Jennie B. Dobson and Bertha F. Dobson, children by a former marriage. By subsequent clauses of his will the testator devised certain tracts of land to his said daughters, and the undivided one-half of his homestead property in Cerro Gordo to his wife for life, with remainder to his grandson.

Prior to their marriage in 1901, the said Franklin Ater and appellee entered into an ante-nuptial contract, which it is unnecessary to here consider, as Franklin Ater disregarded the same when he subsequently executed his will above referred to, and his children and legatees under said will manifestly understood that said contract was not binding upon appellee. Within a few days after the death of Franklin Ater, his executor and son-in-law, Fred H. Dobson, appellant herein, had an interview with appellee relative to the estate of her husband and her interest therein, in which interview it seems to have been claimed by appellee and admitted by .appellant acting for the other parties in interest, that appellee should have been more liberally provided for by the will of her husband. Dobson, then, or shortly thereafter, consulted the other parties in interest with a view to arriving at an amicable agreement for a settlement and division of the estate. The estate consisted of personal property (exclusive of that specifically bequeathed to appellee by the second clause of the will) valued at about $6,000; an undivided one-half interest in the homestead worth about $1,000; a small strip of ground adjoining the homestead, worth about $125; and 269 acres of farm land, worth about $140 an acre.

Articles of agreement were drawn in duplicate and signed by all of the parties in interest, except appellee, and were then given to appellee for examination. She kept the same for several days and after consulting an attorney of her own choice, she signed the same. The agreement in question is as follows:

“This agreement made and entered into this seventh day of July, A. D. 1905, by and between Della M. Peck and A. L. Peck, Jennie B. Dobson and Fred H. Dobson and George E. Dobson, of the county of Piatt and State of Illinois, parties of the first part, and Ida F. Ater of the county of Piatt and State of Illinois, party of the second part.
Witnesseth, that for and in consideration of the widow’s award in the estate of Franklin Ater, deceased, by the said Ida F. Ater, and the execution of and delivery of certain quit claim deeds for land owned by the said Franklin Ater, deceased, which was by his last will and testament given to the said Della M. Peck, Jennie B. Dobson and Bertha F. Dobson, which said deeds have been this day executed and delivered by the said Ida F. Ater, the said parties of the first part hereby agree to and with the said Ida F. Ater, that in the settlement of the estate of the said Franklin Ater, deceased, that they will pay to the said. Ida F. Ater a sum equal to the amount that the said Della M. Peck, Jennie B. Dobson and Bertha F. Dobson shall receive from Fred H. Dobson, executor of the said estate of Franklin Ater, deceased, under the fourth clause of bis last will and testament, it being the intention and agreement that the said Ida F. Ater shall receive the amount provided for in the said fourth clause of the said last will and testament of Franklin Ater, deceased, which according to the said fourth clause of said will would be given to the said Ida F. Ater, Della M. Peck, Jennie B. Dobson and Bertha F. Dobson in equal portions, and it is further agreed by and between the said Fred H. Dobson and Jennie B. Dobson, that in case the sum received by the said Ida F. Ater from the fourth clause in said last will and testament and from said Della M. Peck, Jennie B. Dobson and Bertha F. Dobson, does not amount to the sum of three thousand dollars ($3,000), then the said Fred H. Dobson and Jennie B. Dobson hereby agree that they will pay to the said Ida F. Ater the difference between the amount received by her as above provided and the sum of three thousand dollars, hereby intending to and guaranteeing that the said Ida F. Ater shall receive the full sum of $3,000. The said sums to be paid by the said Della M. Peck, Jennie B. Dobson and Bertha F. Dobson are to be paid to the said Ida F. Ater within ten (10) days after they have received the said amount or any part thereof from the said Fred H. Dobson, executor of the said estate of Franklin Ater, deceased, and the said Fred H. Dobson and Jennie B. Dobson hereby agree that the amount necessary if any that they agree to pay to the said Ida F. Ater to make her sum of money amount to $3,000 shall be paid to her within fifteen months after this date and sooner if the amount to be paid by them can be ascertained before that time.
Nothing in this agreement shall be taken to or in any manner change the provisions of the said last will and testament of the said Franklin Ater, deceased, whereby the said Bertha F. Dobson is to receive the sum of three thousand dollars ($3,000) and the said Ida F. Ater is to receive certain personal property contained in the homestead occupied by the said Franklin Ater, deceased, and also a life interest in the said homestead, but is only to change or effect the sums to be paid under clause four of said last will and testament.
The above agreement is made with the expectation that there be no law suits against the said .estate of Franklin Ater, but in case there should be such lawsuits the costs and judgment of such suits shall fall upon the heirs of the said Franklin Ater in equal portions.
The agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties.
In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written.
Della M. Peck, [Seal.]
A. L. Peck, [Seal.]
Jennie B. Dobson, [Seal.]
Feed H. Dobson, [Seal.]
Bertha F. Dobson, [Seal.]
Geo. E. Dobson, [Seal.]
Mes. Ida F. Atee, [Seal.] ”

There is no pretense that the other parties in interest practiced any fraud upon appellee. Appellee was fully advised as to the character and value of the property of which her husband died seized and possessed. She had ample time and opportunity to examine and consider the agreement, and took independent advice of a reputable attorney of her own selection, before she signed the same. Upon the facts this case differs in every essential particular from the facts involved in Mayrand v. Mayrand, 194 Ill. 45, relied upon by appellee.

The only question remaining in the case is whether or not, by the terms of the contract, appellee relinquished her widow’s award in the estate of her deceased husband.

The agreement is somewhat awkwardly and inartistically drafted, but if it means anything it must be construed to operate as a release and relinquishment by appellee of her claim for widow’s award.

The agreement assumes to first state the consideration moving from appellee for the payment to her by the other parties of the sum of $3,000, and a part of the consideration so moving from appellee is her widow’s award. This is manifest when the language of the agreement in that particular is analyzed. It says: “Witnesseth, that for and in consideration of the widow’s award in the estate of Franklin Ater, deceased, by the said Ida F. Ater, and the execution and delivery of certain quit claim deeds for lands owned by the said Franklin Ater, deceased, which was by his last will and testament given to the said Della M. Peck, Jennie B. Dobson and Bertha F. Dobson, which said deeds have been this day executed and delivered by the said Ida F. Ater, the parties of the first part hereby agree to and with the said Ida F. Ater, that in the settlement of the estate of the said Franklin Ater, deceased, that they will pay to the said Ida F. Ater,” etc.

No other reference to the widow’s award is made in the agreement, and it is manifest that it was intended by the agreement to effectuate a final division between the parties of the entire estate of Franklin Ater. The reference to the widow’s award as a moving consideration in the agreement, is coupled by use of the conjunction “and,” with the covenant by appellee to execute and deliver certain quit claim deeds to the other parties in interest, and the covenant by such other parties to pay appellee $3,000 is predicated upon the consideration moving from appellee, viz: her widow’s award and the execution and delivery by her of certain quit claim deeds. To hold that the agreement should be construed to mean that appellee was to be' thereby allowed her award in addition to the $3,000 would do violence to the language used.

The judgment of the Circuit Court will be reversed and the cause remanded with directions to overrule the objections to appellant’s report as executor, and to disallow the claim of appellee for her widow’s award.

Reversed and remanded with directions.


author: Mr. Justice Brown

text:
    John Gusten, Appellant, v. Chicago, Rock Island & Pacific Railway Company, Appellee.
    Gen. No. 13,882.
    In this case the plaintiff, a car cleaner, employed by the defendant company, was injured in the yards of such company. In the course of the opinion, it was, among other things, said:
    “Dangerous and undesirable as a railroad yard at the best may be as a place to work in, it cannot be said that it is negligence per se to maintain a track in such a busy yard, in the center of population, where space is valuable, but three feet and a half from the side of the hot house, from which there were methods of egress at the ends as well as through the side doors.”
    It was also said in the opinion in this case:
    “We do not mean to say that the railroad company had an uncontrolled right to run at any speed or under any conditions by this house. We think it was under the obligation to use reasonable care in the rate of speed,” etc.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodoee Bbentatto, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed July 6, 1908.
    Gilbert & Gilbert and A. N. Waterman, for appellant.
    M. L. Bell and B. S. Cable, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.


text:
    John T. McKenna, Defendant in Error, v. American Copying Company, Plaintiff in Error.
    Gen. No. 13,913.
    This case is controlled by the decision in Barr v. American Copying Company ante, p. 92.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    Leslie A. Needham, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the

court.


author: Mr. Justice Adams

text:
    Frank S. McDevitt, Plaintiff in Error, v. Clarence A. Burley et al., Defendants in Error.
    Gen. No. 13,929.
    In this case there was nothing involved but a question of fact.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    A. N. Pagert, for plaintiff in error.
    Edward E. Hills, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.


text:
    John Hamilton, Appellant, v. J. B. Kilroy, Appellee.
    Gen. No. 13,937.
    In this case there was nothing involved bnt a question of fact.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. William L. Pond, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    F. H. Trude, for appellant.
    Spencer Ward, for appellee.
   Mr. Justice Adams

delivered the opinion of the

court.


text:
    George E. Dickson, Administrator, Appellee, v. George B. Swift & Company, Appellant.
    Gen. No. 13,953.
    This was an action on the case for death caused by alleged wrongful act. The accident in question resulted from a fall through a hole in a scaffold. Held, first, that the declaration stated a cause of action; second, that “it was not error of which the defendant can take advantage for the jury to disregard an erroneous instruction given at his own request,” and, third, that the risk in question was not an assumed risk, as a matter of law.
    Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    Elbridge Hanecy, F. J. Canty and R. J. Folonie, for appellants.
    John A. Bloomingston, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.


author: Mr. Presiding Justice Baker

text:
    Santa Clara Valley Mill & Lumber Company, Appellee, v. DeWitt Clinton Prescott, Appellant.
    Gen. No. 13,934.
    This was an action of debt. The case was previously before the Appellate Court of this District and is reported in 127 Ill. App. 644.

      'Held, that “in an action on a foreign judgment interest is allowed on such judgment at the rate fixed by the law in the foreign state.”
    Action of debt. Appeal from the Superior Court of Cook county; the Hon. Geobge A. Dtjptjy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed July 14, 1908.
    Gorham & Wales and Franklin E. Vaughan, for appellant.
    F. W. Winkler, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Evening American Publishing Company, Appellant, v. Rose Ball, Appellee.
    Gen. No. 13,526.
    This was an action on the case for libel. Held, first, that the article declared on was admissible, under the declaration; second, that it was libelous per se, and third, that the following instruction was not erroneous.
    “The court instructs the jury as a matter of law, that if you find from a consideration of the evidence and the law as stated in these instructions, the publication in question is as to the plaintiff untrue and was made by the defendant, it is libelous, and the plaintiff is entitled to such damages as shall afford a reparation for all the injury including mental suffering and humiliation, which has naturally and approximately resulted from the publication, if any, shown by the evidence.”
    Action on the case for libel. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed July 14, 1908.
    Darrow, Masters & Wilson, for appellant.
    Bartlett & Irving, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Helen T. Pelouze et al., Executors, Appellants, v. Harrison B. Slaughter, Executor, et al., Appellees.
    Gen. No. 13,310.
    This action was instituted by bill in equity praying an accounting. Only questions of fact were determined by the opinion of the court.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1906.
    Affirmed.
    Opinion filed July 14, 1908.
    Morris St. P. Thomas and William E. O’Neil, for appellant.
    Hiram T. Gilbert and Jacob Newman, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.


author: Mr. Justice Smith

text:
    Angelo B. Pirola et al., Appellees, v. W. J. Turner Company, Appellant.
    Gen. No. 14,120.
    This was a mechanic’s lien proceeding instituted by a sub-contractor. Held, first, that nothing is regarded as admitted by an answer in chancery unless it is expressly admitted,—an answer which calls for strict proof requires strict proof; and second, that the right to a mechanic’s lien, under the circumstances of this case, was dependent upon the service of notice of lien, of the service of which notice no proof was made.
    Mechanic’s lien. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEweh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded with directions.
    Opinion filed July 14, 1908.
    Dolph, Buell & Abbey, for appellant.
    Gallagher & Messner, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.


text:
    W. C. Kelley and A. W. Askins, Appellees, v. Addie P. Hanes, Appellant.

      Partnership—when dissolution not established. Held, from the evidence in this case, that the dissolution of the partnership in question had not been established.
    Bill of interpleader. Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded, with directions.
    Opinion filed June 11, 1908.
    George B. Rhoads, for appellant.
    W. H. Whitaker and R. M. Peadro, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

W. C. Kelley, appellee, filed a bill of interpleader against appellant, Addie P. Hanes, and appellee, A. W. Asldns, to determine the conflicting claims of said appellant and Asldns to the sum of $1,117 paid to Kelley in compromise of a claim for loss by fire under certain insurance policies on a grain elevator. Upon a hearing the chancellor found that said money belonged to Askins and a decree was entered directing Kelley to pay the same to him. To reverse that decree, Addie P. Hanes prosecutes this appeal.

In 1901 C. R. Barton and Hollis H. Price formed a partnership under the firm name of Barton-Price Co., to buy and sell hay. The principal office of the firm was in Louisville, Ky., but purchases were made at various places in Illinois and elsewhere. and the hay shipped throughout the Southern States. In October 1904, the firm purchased a grain elevator in Tower Hill, Illinois, and the business of the firm at that place was conducted under the name of the Tower Hill Elevator Company. After the firm acquired the elevator at Tower Hill, Barton managed the business at that place and Price remained in charge of the business at Louisville. When the elevator was purchased it was insured in the name of Clegg & Bullington and the policies of insurance were assigned to Barton, and in January following Barton procured another policy of insurance on the property in his own name. The elevator was destroyed by fire February 12, 1905, and the insurance companies having refused payment on the policies they were delivered to W. C. Kelley, an attorney, for collection. The money involved in this proceeding is the proceeds of a compromise effected by Kelley with the insurance companies.

Appellant, Addie P. Hanes, is the mother of Hollis H. Price. In October 1904, a farm belonging to her former husband, William Price, was sold, and in part payment therefor the purchaser executed his note for $5,000 payable to Addie P. Hanes, secured by mortgage on the premises. 'Sometime thereafter this mortgage was assigned by Addie P. Hanes to her son, Hollis H. Price, for the purpose, as the evidence tends to show, of enabling the said Price to use the same as collateral security for the debts of the firm of Barton-Price Co., and to secure further advances of money to be used in the firm business. This mortgage was on July 21, 1905, assigned to the First National Bank of Louisville for the purposes above named, and Barton had knowledge that said bank so held said mortgage. Shortly thereafter Price and one Wells, a railroad employe, were indicted by the federal grand jury at Louisville for allowing and accepting rebates on shipments of hay by the firm of Barton-Price Co., and Addie P. Hanes arranged for the bail required by Price, by borrowing $3,000 in Decatur and forwarding the same to Louisville. Price pleaded guilty to the indictment and was fined $1,000, the fine being paid out of the money deposited to secure his bail.

In response to the persistent appeals of Mrs. Hanes to Barton that the latter arrange in some way to pay the firm indebtedness to the First National Bank of Louisville, and thus enable her to withdraw the $5,000 mortgage which had been pledged as collateral security, Barton, on August 12, 1905, authorized one Harrison to assign the policies of insurance dn the elevator, the loss under which had not then been paid, to the bank, to secure the firm indebtedness, and Harrison executed such assignment but the bank refused to accept the same, and on September 5, 1905, re-assigned the same to Harrison and the firm of Barton-Price Co. 'Shortly thereafter Price brought the policies to Tower Hill and put them in the safe. On October 26, 1905, Barton took the insurance policies to Findlay, Illinois, and there borrowed of appellee, A. W. Askins, $1,500, giving his note therefor payable three months after date. Written upon the face of said note appeared the following: ‘ ‘ This note is to be paid out of my insurance before any other claims are paid.” The insurance policies were not assigned or delivered to Askins but were retained by Barton who thereafter returned them to W. C. Kelley.

Mrs. Hanes continued to importune Barton to give her the insurance policies so that the proceeds might be applied by her in settlement of the firm debts and in securing the release of her mortgage, and on November 14, 1905, Barton authorized Kelley to deliver the same to her. She thus obtained the policies from Kelley and retained them until January 18, 1906, when they were returned to Kelley in pursuance of the terms of an agreement by Barton, as follows:

“Tower Hill, III., Jan. 18,1906.

Mr. W. C. Kelley, Attorney,

Shelbyville, Illinois.

Dear Sir:

This is authority to bring suit on policies on burned elevator at Tower Hill, now in possession of Addie P. Hanes, as you deem fit and advisable. This suit to be brought in the name of the party or parties- named on the policy, and you as assignee of funds collected to be held on trust for Addie P. Hanes, until one note for $5,000 held on trust by the First National Bank of Louisville for Barton, Price & Co. is returned to Addie P. Hanes. If said note for $5000 is returned at a time prior to the time of the collection of the above policies Addie P. Hanes shall not be further known in the foregoing consideration.

C. R. Barton.”

Kelley brought suit on the policies and on March 29, 1906, a compromise was effected with the consent of Mrs. Hanes and Barton, whereby the insurance companies paid to Kelley $1,250. When Mrs. Hanes demanded of Kelley the money in-his hands, the latter refused to pay the same to her, because Askins had made a claim thereto based upon an order by Barton, as follows:

“Lakewood, III., March 17, 1906.

Mr. W. C. Kelley,

Shelbyville, Ill.

Dear Sir:

Please pay A. W. Askins amount of my insurance above your fee which will be $1,150.00, as same is due him on note.

Yours truly,

C. R. Barton.”

At the time the suit was compromised by Kelley, there was due to the First National Bank of Louisville, the sum of $4,225.69, as collateral security for the payment of which sum the bank held the $5,000 mortgage and certain accounts, claimed to be due the firm of Barton-Price Co., amounting to $1,001.81.

Waiving all other questions raised upon this record, if it is established that the firm of Barton-Price Co. was not dissolved, as is claimed by counsel for appellee; that the business at Louisville and Tower Hill continued to be conducted as partnership business; that the elevator at Tower Hill remained the property of the firm, and that the amount due the First National Bank of Louisville was partnership indebtedness, it must be held that Mrs. Hanes is entitled to the fund in controversy and that the decree should be reversed. Counsel for appellee, Askins, insist that the firm of Barton-Price Co. was dissolved by the terms of an instrument, introduced in evidence, as follows:

“Louisville, Ky., December 5, 1904.

“This agreement of an article of dissolution made in duplicate the day and date above written by and between C. B. Barton, of the first part, and H. H. Price of the second part; witnesseth: That whereas, the first and second parties have heretofore been engaged in business in Louisville, Kentucky, under the name and style of Barton Price Company, and also in a certain business known as the Tower Hill Elevator Company at Tower Hill, Ill., now the said first and second parties hereto in consideration of one dollar to each other mutually paid and received and other valuable considerations and upon the stipulations and conditions as hereinafter set forth, have and do hereby agree that the business thus conducted by them as hereinabove referred to and the partnership as so conducted by them and between them is as of this date ended and dissolved.

“C. B. Barton agrees to and does hereby relinquish, transfer and assign to II. II. Price, all his right, claim and demand in the business heretofore conducted under the name of Barton-Price Company, at Louisville, Kentucky, being valued as follows by Barton-Price Company, at Louisville, property consisting of warehouse, located at 31st and Market Streets, office fixtures, consisting of desks and typewriters, open accounts due and owing to the firm, all stocks on hand, all contracts in purchases and sales, all claims from the respective railroad companies due or owing and all stock stored in the city of Louisville or other cities, as well as all money at this dáte in Bank, and said C. B. Barton further agrees that the said H. H. Price may and is to continue to conduct the business in Louisville, Kentucky, under the name of Barton-Price Company, and in conducting said business to be authorized to use the name of Barton-Price Company in all transactions, receipts and papers, but he the said C. B. Barton is to be and is released from any and all liability therefrom after December 5, 1904, and the said H. H. Price is to be and does assume any liabilities or debts owing by Barton Price Company as of this date. The said business in general being mutually valued at Five Thousand ($5000.00) Dollars and the said H. H. Price, second party hereto, in consideration of the premises hereby agrees to and does release, transfer' and assign all right, title, claim or demand he has in the business, property or effects, known as the Tower Hill Elevator Company, located at Tower Hill, Illinois, and C. B. Barton, first party, shall from this date forward, own the said business entirely and exclusively by himself and conduct it in his own name and for his own use and profit, the said business it being understood being valued at an agreed valuation of Four thousand and fifty ($4,050) dollars. C. B. Barton is to receive Five Hundred ($500) Dollars which is paid with the delivery of this paper on this date and to receive a further sum of One Thousand ($1000) dollars on December 31st, 1904, as a last and final payment in the premises. C. B. Barton is to and does assume the payment of any unpaid money due or owing on the purchase of the Tower Hill Elevator property and H. H. Price is to and does assume the payment of all liabilities due or owing at this date by Barton-Price Company.

“In testimony whereof, witness the hands of the first and second parties hereto in duplicate this December 5, 1904.

H. H. Price,

C. B. Bartók.

"With reference to this instrument and its execution, H. H. Price testifies that some time before the fire an attempt was made to dissolve the firm by mutual agreement; that Barton wrote to him for terms of dissolution which would be satisfactory to him and that in response to said request he had the paper prepared in duplicate, and after signing the same he sent it to Barton to be signed and returned to him (Price) if satisfactory; that Barton was not satisfied with the terms of the agreement, and never returned the paper to him; and that he had not seen it since he sent it to Barton until it was produced by the latter upon the hearing. Barton testifies that he signed the paper when he received it from Price and returned it to the latter immediately thereafter.

The contention of Barton that the partnership was dissolved by the terms of that instrument is contradicted by the overwhelming weight of the evidence in the record.

It is not denied that the $500 and $1,000 required by the terms of the alleged agreement to be paid by Price to Barton was never paid, and that Barton never made a demand on Price therefor. On February 12, 1905, two months after the date of the alleged contract of dissolution, Barton'wrote to Price, informing him of the burning of the elevator at Tower Hill early that morning. Among other language in the letter indicating a mutual interest in the loss Barton uses the following: “We had the misfortune.” “We were lucky to have no grain of note in it, our loss is going to be heavy on the building as we have only $3,300 insurance.” “Don’t give yourself any worry over the loss, we are up to it and will have to stand it, will have to try and make it back in some way.”

November 10, 1905, Barton wrote to Price, saying in part: “It is hard to think I have worked all fall and got nothing; had hoped we might get something from there to do something here, but with the outlook now I can’t see how.we can do anything more; we will lose out bad on Cairo deal.”

November 13, 1905, Barton wrote to Price as follows:

“Tower Hill, Illinois, 11/13/1905.

Mr. H. H. Price,

Louisville, Ky.

Dear Sir:

I called Bogers this a. m. and told him to not sell things till he got my letter which I will get out tomorrow a. m. Am at a loss to write till I hear from you. Am sorry we are tied up as we are there, try and get it fixed up best you can and get all you can to do business on. Meantime you tell Ora to not talk to the people here about any part. If they come to me and say to me that you owned part of this business and we were going to run together again now they, are using her to pick things for their own use now you know as well as can be as soon as this goes out our name is Dennis here so tell her to let alone any conversations on it for it will do us up sure. Now this is one. of the reasons I have for wanting out for I know we will go just as that has went there. Now I am doing all I can for you but it will never do for it to be known here that we are both interested here in this matter. I lmow more here than I can write will tell you when you come up home but get this closed down.

Tours,

C. R. B.”

On April 9, 1906, Barton wrote to Price giving an itemized list of debts amounting to $7,829.86, including $1,000 paid by Price as a fine for rebating,- due at the Tower Hill end of the business and saying: “What bills are due in Louisville will be to add to this amount.”

Under date of July 31, 1905, Barton wrote to Price, saying he had tried to get a loan on the policies but could not as they were sued in his name; that he was doing all he could to hold both ends going until something turned up to favor them.

In the written assignment of the insurance policies executed by Barton August 12, 1905, he describes himself as “surety and partner in the firm of Barton-Price Co.,” and designates the purpose of said assignment as for “collateral real and personal and to the use of said firm.”

The evidence discloses that in March and April, 3905, Barton was in Louisville working in and about the business conducted at that place, and that as late as in the spring of 1906, Price occasionally assisted in conducting the business at Tower Hill, and exercised authority to sign the firm name to checks. The conclusion is irresistible that there was in fact no dissolution of the partnership; that the indebtedness, both at Louisville and Tower Hill was the indebtedness of the partnership; and that the policies of insurance were pledged to secure the payment of a firm debt.

It is conceded that the indebtedness of Barton to Askins, evidenced by the note for $1,500, was not the indebtedness of the firm, but of Barton personally.

It is claimed on behalf of Askins that Barton executed the pledge of the insurance policies to Mrs. Hanes on January 18,1906, under duress; that the duress consisted in the refusal of Mrs. Hanes to surrender the policies, and the necessity that Barton should acquire possession of them for the purpose of bringing suit within one year after the fire to recover the loss, as required by the terms of the policies. This contention is evidently an afterthought on the part of Barton, as the evidence does not disclose that he interposed any objection, at the time, to signing the paper.

The equities of this cause are with the appellant, Addie P. Hanes, and the decree of the Circuit Court is reversed and the cause remanded with directions to enter a decree directing Kelley to pay the money in his hands to the said Addie P. Hanes.

Reversed and remanded with directions.


text:
    J. C. McKnight et al., Appellees, v. S. P. Drake et al., Appellants.
    1. Trusts—what essential to establish, in favor of partnership. In order to create a resulting trust in favor of a partnership the land must have been purchased with partnership funds and used for partnership purposes. A resulting trust cannot be created by a contract or agreement made between the parties, and no payment made will create a resulting trust unless the transaction is such at the moment the title passes that a trust will result therefrom.
    2. Appeals and errors—when costs of printing will not be taxed. If cross-error’s are assigned apparently in good faith, the fact that they were subsequently withdrawn will not justify the court in taxing the costs of printing a brief and argument filed in opposition to such cross-errors.
    Bill for accounting. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded with directions.
    Opinion filed June 11, 1908.
    Rehearing denied November 19, 1908.
    Harbaugh & Thompson, for appellants.
    Hugh Crea, Hugh Housum, and Edwin J. Miller, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The original bill of complaint of J. C. McKnight, appellee herein, alleges that in the year 1900 C. W. Brown, Joseph Stocks, A. B. Pifer, S. P. Drake, L. G-. Hostetler and appellee entered into a partnership under the firm name of Stocks, Pifer & Co., for the purpose of prospecting for coal and obtaining coal leases in the vicinity of Lovington; that Stocks and Pifer had each a one-fourth interest in said partnership and Hostetler, Drake, Brown and appellee each a one-eighth interest therein; that the firm sank a prospect shaft on land belonging to Hostetler and located a stratum of coal nine feet in thickness, and thereafter secured the right hy lease to mine coal in about five thousand acres of land; that one Byron Cheever owned a tract of land adjacent to the village of Lovington containing 104.65 acres, which land said Cheever refused to lease or sell to the firm; that thereafter, on February 21,1901, said Cheever was induced to sell and convey said land to one W. C. Trabue for $10,500 and that said Trabue paid for said land by giving his check on the Hardware Bank of Lovington, wliich bank was owned by Drake & Hostétler ; that although the deed to the land was taken in the name of Trabue the land was in fact purchased for the firm of Stocks, Pifer & Co., who paid the consideration therefor; that appellee offered to pay to the firm the sum of $1,312.50 as his share of the purchase price of the land, but was assured by Stocks, Pifer, Drake and Hostetler, that he could pay his proportion at a later date and that his interest in the said land and partnership would remain the same; that said Trabue thereafter conveyed said land to Stocks, Pifer, Drake and Hostetler. The bill further alleges that in September, 1901, said partnership organized a corporation known as the Moultrie County Coal Company, for the purpose of taking over the assets of the partnership and operating a coal mine; that the capital stock of said corporation was fixed at $150,000; that thereafter, on May 15, 1902, the capital stock of said corporation was decreased to $80,000 divided into 800 shares of the par value of $100 each, and the partnership assets of the firm of Stocks, Pifer & Co. were then sold, assigned and transferred to said corporation for $40,000 of its paid up stock, which paid up stock was then ordered to be issued to the several members of the partnership as follows: Pifer ninety shares, Stocks ninety-four shares, Hostetler ninety-two shares, Drake sixty-seven shares, Brown twenty-seven shares, and appellee twenty-seven' shares, making a total of 400 shares, and that the remaining shares were to be retainéd as treasury stock, and the same was afterward placed on the market and sold at par; that in said transfer of the assets of said firm-to said corporation, the tract of land purchased from Cheever was •valued at $16,000, and the tract of land owned by Hostetler, upon which the prospect shaft was sunk, was valued at $2,500. The bill further alleges that appellee objected to and protested against the division of the 400 shares of stock as above set forth for the reason that said division was not equitable; that appellee was entitled to fifty shares of said stock, except that for the land owned by Hostetler, which was turned into the corporation at $2,500, appellee agreed to contribute his one-eighth part thereof or $312.50, which would have entitled appellee’ to forty-six and seven-eighths shares, subject to the payment by him of $1,312.50, being one-eighth of the purchase price of the Cheever tract of land; that there was a profit in the sale of the Cheever tract of land to the corporation of $5,500, appellee’s share of which profit is $687.50; that appellee' is advised that the Moultrie County Coal Company has entered into an agreement to transfer all of its property to a corporation known as the Lovington Coal Mining Company. The. bill prays for an accounting as to the business of the co-partnership, and that shares of the value of $687.50 of the capital stock of the Moultrie County Coal Company may be declared to be due appellee from his co-partners, Hostetler, Stocks, Pifer and Drake and said corporation, or in case the said shares of stock are sold that that amount of money be decreed to be paid appellee. In his amended bill appellee alleges that since the filing of his original bill the Moultrie County Coal Company has sold and transferred all of its property to Cyrus A. Potts and Charles A. Clark, who in turn conveyed the same to the Lovington Coal Mining Company; that said transfers were made while appellee’s rights and claims were lis pendens and that the last named corporation has placed a trust deed for the sum of $500,000 upon all of the property formerly owned by the co-partnership. The amended bill prays additional relief which it is not necessary to recite in detail. After answers filed by the several defendants and the filing by appellee of his replications thereto, the cause was referred to the master in chancery and was heard by the chancellor upon the proofs reported by the master. The court found that the tract of land sold by Cheever to Trabue was purchased for the partnership and was sold to the Moultrie County Coal Company at a profit of $5,000, and that appellee should have paid one-eighth part of the purchase money therefor and that he offered to do so; that appellee is entitled to one-eighth part of the profits of the sale of said land to said corporation, being $687.50, and that Hostetler, Drake, Stocks and Pifer, appropriated said profit to their own use and should account to appellee therefor; that appellee should be charged with interest on one-eighth of the purchase price of said land from February 27, 1901, to May 17,1902, at the rate of five per cent, and also with $100 paid by. Byron Cheever to appellee, as commission for effecting the sale, and that he should be credited with $50, being one-eighth of the amount deducted from the purchase price of the land by reason of the payment of rent therefor in advance to said Cheever; that the Moultrie County Coal Company set apart twenty-seven shares of its capital stock for appellee, one of which shares of stock was transferred by appellee to appellant Hostetler, and that the remaining twenty-six shares of stock are undisposed of and appellee had refused to accept the same; that there was no equity in appellee’s amended bill touching the relief therein prayed against the Moultrie County Coal Company, the Lovington Coal Mining Company, Cyrus A. Potts, Charles A. Clark and Alexis B. Montgomery, trustees, and the same should be dismissed as to said parties. The decree directs that Pifer, Stocks, Hostetler and Drake account to appellee for his one-eighth of the profits derived from the sale of the Cheever land, and fixes the amount due to appellee upon such accounting at $687.31 and said Pifer, Stocks, Hostetler and Drake were adjudged to pay one-half of the cost of the proceeding’, except the sheriff’s costs. From this decree Joseph Stocks, L. G-. Hostetler and S. P. Drake have appealed to this court.

The hill is framed upon the theory that, the purchase by Stocks, Pifer, Drake and Hostetler of the Cheever tract of land under the circumstances alleged created a. resulting trust in favor of the partnership of Stocks, Pifer & Co., and it is insisted on behalf of appellee McKnight that the evidence in the record supports such theory. . '

It is well established that in order to create a resulting trust in land in favor of a partnership, the land must have been purchased with partnership funds and used for partnership purposes (Robinson Bank v. Miller, 153 Ill. 245); that a resulting trust cannot be created by a contract or agreement made between the parties (Mayfield v. Forsythe, 164 Ill. 32; Brennaman v. Schell, 212 Ill. 356), and that no payment made will create a resulting trust unless the transaction is such at the moment the title passes that a trust-will result therefrom. Fuber v. Page, 143 Ill. 622; Brennaman v. Schell, supra. An application of these principles to the facts disclosed by the evidence in this record necessarily lead us to the conclusion that the purchase of the Cheever tract of land was not impressed with a resulting trust in favor of the partnership of Stocks, Pifer & Co.

About the year 1897 Joseph Stocks, A. R. Pifer, C. W. Brown and J.. C. McKnight formed a co-partnership-for the purpose of securing coal leases and mineral rights in the vicinity of Lovington, Illinois, and drilling a prospect hole for coal. Some time thereafter S. P. Drake and L. G. Hostetler were admitted into the firm as co-partners, and the interests of the -several partners in the business and assets of said firm were determined to be as follows-: Stocks and Pifer each one-fourth, and Brown, Hostetler, Drake and McKnight each one-eighth, Prior to the purchase of the Cheever tract of land, as hereinafter stated, appellee McKnight had contributed the sum of $500 as his one-eighth share of the expense incurred in procuring the right to mine coal in about 5,000 acres of land and in drilling a prospect hole on a small tract of land owned by Hostetler. The prospect hole was drilled to a depth of about 1,100 feet, at which depth a vein of coal nine feet in thickness was supposed to be located. It was conceived to be to the advantage of the partnership to secure the right to mine coal in a tract of land, containing 104.65 acres owned by Byron Cheever, but for some reason personal to himself Cheever had refused to grant such right or to sell the land to any of the parties interested in the enterprise. It is impossible to determine definitely from the evidence how McKnight was induced to enter into negotiations with Cheever for the purchase of the land, whether upon his own suggestion or at the request of Pifer and Hostetler, but however this may be, he went to Decatur, where Cheever resided, and persuaded Cheever to authorize him to sell the land at $100 per acre, and to pay him a commission of $100 if a sale was effected at that price. Thereupon, McKnight introduced to Cheever one W. C. Trabue, as an intended purchaser of the land, and it was arranged that Trabue, although he had no credit at that bank, should give his personal check to Cheever for the purchase price of the land upon the Hardware Bank of Lovington, which was owned and conducted by Drake & Hostetler, for $10,500 and that said bank should pay the check, and that Trabue should thereafter convey the land to the parties in interest. Cheever having rented the land for the year following the sale, and the rent amounting to $400 having been paid to him in advance, that amount was deducted from the purchase price, and Trabue gave to Cheever his check on said Hardware Bank for $10,100 which check was thereafter paid by said bank. The Hardware Bank also paid to Trabue $200 in payment for his services and expenses in procuring title to the land. These several amounts were charged by the bank to the real estate account of Drake and Hostetler. Cheever paid to McKnight $100 as his commission for effecting the sale, and McKnight retained the same as his individual property. On February 27,1901, Trabue conveyed the said land to Stocks, Pifer, Drake and Hostetler, and shortly thereafter Pifer and Stocks each paid to the Hardware Bank one-fourth of the purchase price of said land together with the costs and expenses of procuring title thereto, and the real estate account of Drake and Hostetler was credited with the amount so paid. At the time said land was purchased the partnership of Stocks, Pifer & Co. had no funds and no assessment was thereafter made upon the members of the co-partnership to raise funds for that purpose. McKnight had full knowledge of the conveyance of the land by Trabue to Stocks, Pifer, Drake and Hostetler. He made no objection thereto and claimed no interest in the land until May, 1902. He contributed nothing to the purchase price and expenses incurred in purchasing the land, and made no offer to pay any part of the consideration until about May 15, 1902, under the circumstances hereinafter stated.

On September 12, 1901, the Moultrie County Coal Company was incorporated with a capital stock of $150,000, divided into 1,500 shares of the par value of $100 each, and the several members of the co-partnership of Stocks, Pifer & Co. became shareholders in said corporation substantially in proportion to their several interests in said partnership. At a meeting of the stockholders and directors of said corporation held on May 15, 1902, the capital stock of the corporation was decreased from $150,000 to $80,000 and a proposition by the firm of Stocks, Pifer & Co. was submitted to said corporation as follows:

"Lovington, Illinois, May 15, 1902. To the Moultrie County Coal Company: We hereby propose to the Moultrie County Coal Company to sell to said company all of the coal leases, franchises, real estate and all other property pertaining to coal mining, held by Stocks, Pifer and Go., composed of the undersigned, for the sum of forty thousand dollars, and that we will accept in payment therefor four hundred shares of the capital stock of said company at the par value of $40,000.

A. B. Pifer,

G. ,W. Brown,

S. P. Drake,

'J. G. McKnight,

Joseph Stocks,

L. G5-. Hostetler/

A resolution was then adopted accepting the proposition made as above and directing the secretary to accept deeds of real estate and transfers of leases and franchises and other property belonging to the firm of Stocks, Pifer & Go., and to issue to the several members of the co-partnership in consideration therefor 400 shares of the capital stock of said corporation in the proportions following: A. B. Pifer ninety-three shares, Joseph Stocks ninety-four shares, L. G-. Hostetler ninety-two shares, S. P. Drake sixty-seven shares and C. W. Brown and J. 0. McKnight each twenty-seven shares. The remaining 400 shares of the capital stock of said corporation were to be held as treasury stock and sold to outside parties at par for the pur■pose of raising funds to carry on the business of the corporation. A resolution of similar import so far as it related to the distribution of 400 shares of stock among the several stockholders and the retention of 400 shares of stock as treasury stock was introduced at said meeting by appellee McKnight and unanimously adopted. Prior to the adoption of said resolutions the question as to the valuation to be put upon the several properties to be transferred to the corporation was generally discussed among the stockholders. It was agreed that the five acres of land belonging to L. G. Hostetler upon which the prospect hole was drilled should be turned into the corporation at $2,500 and that stock to that amount should be issued to him in payment therefor, and Stocks, Pifer, Drake and Hostetler, who held the title to the Cheever tract of land, for which they had paid $10,300 insisted that it should be turned into the corporation at $16,000, which would give, them a profit on the transaction of $5,700. There is some evidence tending to show that McKnight and Brown then objected to the valuation proposed to be put upon the Cheever tract of land, and insisted that it be turned into the corporation at its cost price, with interest, or in the event that it was put in at $16,000 that they should be permitted to share in the profits in proportion to their holdings and interest in the firm of Stocks, Pifer & Co.; that some of the other members of the co-partnership finally consented-that McKnight and Brown should share in the profits if they would each pay the proportionate share of the cost price of the land; that McKnight and Brown then offered to pay their said proportionate shares but were given to understand by some of the other partners that it would be unnecessary for them to make such payments, that Pifer and Stocks should take care of and carry Brown’s interest in the transaction, and Hostetler and Drake should do the same for McKnight, until the matter was finally closed up, and with that understanding and agreement the resolutions heretofore referred to were proposed and adopted. Manifestly, the shares of stock of the corporation were divided among the several parties in accordance with their respective interests in the several properties involved, as follows:

Cheever Coal Hostetler

Land Leases Tract Total

Pifer ..............$4,000 $5,300 $9,300

Stocks ............ 4,000 5,400 9,400

Drake.............. 4,000 2,700 6,700

Hostetler........ 4,000 2,700 $2,500 9,200

Brown............ 2,700 2,700

McKnight ...... 2,700 2,700

Totals......16,000 21,500 2,500 40,000

That McKnight did not consider that he had any interest in the first instance in the Cheever tract of land, is evident from the fact that at the meeting on May 15, 1902, he objected to placing a valuation on it of $16,000 upon the ground that such valuation was too high. If he had understood that the Cheever tract of land was purchased as partnership property, it could make no difference to him at what price it was sold to the corporation, because he would have been entitled to one-eighth of its selling price. On the other hand, if he had no interest in the land, as being partnership property, it would lie to his advantage that it should be sold to the corporation at the lowest possible price, and thus diminish the number of shares to be issued to the actual owners in payment therefor and increase the number of shares to lie divided among the other members of the partnership.

If the transaction in its inception was not impressed with a resulting trust in favor of the partnership, no agreement subsequently entered into could effect that result. In the absence of any showing that the land was purchased with partnership funds, the mere fact that prior to its purchase efforts had been made by the firm to acquire coal rights therein, and that its acquisition inured to the benefit of the firm in enabling it to better promote the purpose of the partnership, was not sufficient to establish a resulting trust in favor of the partnership. The fact that the land was owned by persons interested in the partnership who were willing to dispose of it in connection with the partnership property certainly enabled the partnership to dispose of its property to much better advantage, and it was, doubtless, in view of this consideration that McKnight negotiated for its purchase.

The conduct of McKnight in offering and voting for a resolution fixing the number of shares of the capital stock of the Moultrie County Coal Company to be received by the several stockholders in payment for the assets of the firm of Stocks, Pifer & Co., in such manner as to exclude Mm from participation in the price at which the Cheever tract of land was to be sold, is wholly inconsistent with his present contention that he then had an interest in said land.

Having reached the conclusion that the decree- must be reversed, it is not necessary to notice the cross-error assigned by appellee McKnight now remaining in the record.

Certain of the appellees have filed their brief and argument in this court in support of the ruling of the chancellor in the particulars wherein McKnight assigned certain cross-errors, which have been heretofore withdrawn, and now make their motion to tax the costs of printing such brief and argument against McKnight. As the cross-errors were evidently assigned in good faith the motion-will be denied.

For the reasons heretofore stated the decree will he reversed and the cause remanded with directions to the Circuit Court to dismiss the bill for want of equity.

Reversed and remanded with directions.