author: Bailey J.

text:
    Hobart Chatfield Taylor v. Albert Keep et al.
    1. Construction of wills — Execution of trusts by a court of chancery.—It is a general principle that courts of equity carry trusts into execution only when they are certain and definite in their character; and if a trust is created which by its terms is so vague and indefinite that a court of equity cannot clearly ascertain either the objects or the persons who are to take, such trust will entirely fail, and the property will fall into the general funds of the author of the trust.
    2. Exceptions to the rule—Charitable bequests.—Trusts for charitable purposes, however, will be upheld although expressed with great generality and vagueness, but this exception is strictly limited to trusts for charity; and in order to give them validity, the language employed must require that the fund be expended for some charity according to the legal signification of the word, and for nothing else. So if the language of the gift leaves to the trustee a discretion to expend the fund for a purpose non-charitable, or for purposes partly charitable and partly non-charitable, it will not be upheld.
    3. Meaning of the word “ charity ’’—Statute of Elizabeth in force in this state.—The word “ charity ” in its widest sense, denotes all the good affections which men ought to bear towards each other, and in this sense it embraces all that is usually understood by the words benevolence, philanthropy and good will; but the statute of 43 Elizabeth, commonly known as the statute of Charitable Uses, is in fore? in this State; and one of the results accomplished by it being the establishment of an enumeration or kind of definition, standard or test, to which all gifts and grants in trust could be brought in order to determine whether they were charitable, no bequests, since that statute, are deemed within the authority of chancery and capable óf being established and regulated thereby except for purposes within the enumeration of the statute, or which by analogy come within' its spirit and intendment.
    4. Rule for construing charitable bequest.—In giving construction to the language of a will containing a charitable bequest, if it be found that the testator devoted his bounty definitely and entirely to charity, according to the legal signification of the word, leaving to his trustees no discretion to devote the fund in any event to a purpose not charitable, it must be upheld as a bequest to charity, notwithstanding the uncertainty and indefiniteness of the beneficiaries; but if, on the other hand, there appears to have been a purpose to vest in his trustees a discretion to devote the fund, in any event, or under any circumstances, to a purpose not included within the legal definition of the word, such bequest is too uncertain and indefinite to be upheld.
    5. Statement—Language of the bequest.—The testator, by the sixth clause of his will, directed that fifty thousand dollars be invested, the increase thereof to be paid to his son during his lifetime, and on the death of the son, the principal sum to descend to his children, “ if he have any, but to the charitable institution hereinafter mentioned (or such other charitable institution as my executors shall designate), in case my said son shall die without issue.” By the ninth clause of said will, the residue, after payment of legacies mentioned was given to certain persons therein named, “ in trust, the same to be by them applied and devoted to the founding or endowing * * * of such a charitable or other institution as in their opinion * * * is most needed * * * and if they shall be unwilling, or deem it expedient to organize a new charity, they may duly certify the same to my administrators or executors, who shall then pay over the same to the lawful managers or trustees of ‘ The Home for the Friendless, ’ in said city of Chicago.”
    6. Construction.—As to the bequest mentioned in the ninth clause, held, that there is a clear and manifest intention to vest the trustees with a discretion to devote the fund to a charitable or non-eharitable purpose, and that such bequest, so far as the trustees are concerned, is void for uncertainty; and that the same indofiniteness pervading the bequest in the hands of the trustees, extends to and vitiates the provisions of the same clause relating to the Home for the Friendless; and such bequest cannot be enforced by a court of chancery.
    7. Doctrine of cy pres.—Neither can such bequest be supported under the doctrine of cy pres, for it is not a case of a bequest to charity and a failure of the particular mode in which that charity is to be effected. The doctrine of cy pres cannot be resorted to for the purpose of modifying and restraining the intention of the testator, but where there is an express devise to charity and a failure in the mode of its application, the court under the cy pres power will substitute another mode of devoting the property to charitable purposes.
    8. Construction of sixth clause.—As to the bequest mentioned in the sixth clause, held, that the manifest intention of the testator being to devote the devise to charity, and nothing else, and a charitable institution—The Home for the Friendless—being named in the will, the executors, in the event of the son dying without issue, might give such bequest to that charity, or select another; that it is a valid bequest to charity, and should be sustained as such.
    Appeal from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.
    Mr. Jomj H". Jewett for appellant;
    contending that the provisions of the ninth clause do not make a bequest for the benefit of the persons therein named; that they take as trustees and not beneficially, cited Morice v. Bishop of Durham, 9 Ves. Jr. 405.
    As a devise in trust, it is absolutely void, because no beneficiaries are designated: Perry on Trusts, § 116; 2 Story’s Eq. §§ 979, 1071; Malim v. Keighley, 2 Ves. Jr. 335; Stubbs v. Sargon, 2 Keen, 255; Ommanney v. Butcher, 1 Turn. & Russ. 260; Wheeler v. Smith, 8 How. 79.
    The devise cannot be sustained as a bequest to charity or charitable uses, as no part of the fund is impressed with the character of a charitable donation: Heuser et al. v. Harris et al. 42 Ill. 425; 16 Ill. 225; Perry on Trusts, § 692; 2 Story’s Eq. § 1164; 2 Redfield on Wills, 505; Hill on Trustees, * 81, 450; 1 Jarman on Wills,* 316; Morice v. Bishop of Durham, 9 Ves. Jr. 399; Moggridge v. Thackwell, 7 Ves. Jr. 16; James v. Allen, 3 Mer. 17; Flint v. Warren, 15 Sim. 626; Ellis v. Selby, 1 Mylne & Craig, 286; Vezey v. Jamson, 1 Sim. & Stu. 69; Fowler v. Garlike, 1 Russell & Mylne, 232; Heiss v. Murphy et al. 40 Wis. 276; Norris v. Thompson’s Ex’r, 4 C. E. Green; White v. Fisk et al. 22 Conn. 31; Chamberlain et al. v. Stearns et al. 111 Mass. 167; Adye v. Smith, 44 Conn. 60; Williams v. Kershaw, 5 Cl. & Fin. 111; Kindall v. Granger, 5 Beav. 300; West v. Shuttleworth, 2 Mylne & K. 684; Att’y Gen. v. Haberdasher Co. 1 Mylne & K. 421; Grimes’ Ex’rs v. Harmon et al. 35 Ind. 198; Lepage v. Macnamara, 5 Iowa, 124; Wheeler v. Smith, 9 How. 55; Bridges v. Pleasants, Ired. Eq. 26.
    If the provision cannot be sustained as a devise in trust, nor to charity, it is wholly void, and the fund reverts to the heir at law: Prescott v. Prescott, 7 Met. 146; 2 Redfield on Wills, 176.
    Mr. Wirt Dexter and Mr. John J. Herrick, for the executors, appellees,
    upon the legal meaning of the word charity, cited: Magill v. Brown, Bright (Pa.) 346; Burr’s Ex’rs v. Smith, 7 Vt. 241; Vidal v. Philadelphia, 2 How. 128; Ould v. Washington Hospital for Foundlings, 5 Otto, 303; Heuser v. Harris, 42 Ill. 426; Perry on Trusts, § 698; Jones v. Williams, Amb. 652; Coggeshall v. Pelton, 7 Johns. Ch. 294; Milford v. Reynolds, 1 Phil. Ch. 192; Perin v. Carey, 24 How. 506; Theobald on Wills, 181; Price v. Maxwell, 28 Pa. St. 35; Girard Will Case, 41; Jackson v. Phillips, 14 Allen, 556; Gilman v. Hamilton, 16 Ill. 225.
    The bequest should be construed according to the intention of the testator, and as to the mode of determining such intention: 1 Redfield on Wills, 442; Perry on Trusts, § 709; Rotch v. Emerson, 105 Mass. 433; Magill v. Brown, Bright (Pa.) 407; Dolan v. McDermott, 3 Ch. App. 676; Saltonstall v. Sanders, 11 Allen, 446; Whicker v. Hume, 7 H. L. Cas. 162.
    Where the general intent of the testator is clear, and it is impracticable to give effect to all the language of the .instrument, expressive of some particular intent, the latter must yield to the former: 1 Redfield on Wills, 433; Pond v. Bergh, 10 Paige Ch. 152; Wicker v. Hume, 7 H. L. Cas. 124.
    A devise authorizing an application of funds to “benevolent purposes,” is a valid devise to charity: Att’y Gen. v. Comber, 2 Sim. & Stu. 93; Jemmett v. Verril, Amb. 585; Hill v. Burns, 2 Wils. & Shaw, 8; Chrichton v. Grierson, 3 Bligh. 434; Miller v. Rowan, 5 Clark & Fin. 99; Saltonstall v. Sanders, 11 Allen, 465; DeCamp v. Dobbins, 6 Cent. Law Jour. 449.
    The bequest is sufficiently certain to be executed: Fontain v. Ravanel, 17 How. 384; Miller v. Teachout, 24 Ohio St. 534; Treat’s Appeal, 30 Conn. 113; Perry on Trusts, § 720.
    The bequest in the sixth clause of the will can be sustained as an executory trust: Perry on Trusts, § 359; Theobald on Wills, 405; 3 Redfield on Wills, 530.
    Mr. David Fades, for The Home for the Friendless;
    argued that the bequest in the ninth clause not being for a purely charitable purpose, is void, and cited 2 Story’s Eq. §§ 979, 1164; Perry on Trusts, § 696; Ellis v. Selby, 7 Sim. 352; Vesey v. Jameson, 1 Sim. & Stu. 69; Gibbs v. Rumsey, 2 Ves. & B. 294; Morice v. Bishop of Durham, 9 Ves. 399; James v. Allen, 3 Mer. 17; A dye v. Smith, 44 Conn. 60; Thompson v. Norris, 5 C. E. Green, 489; 2 Roper on Legacies, 1237; Williams v. Kershaw, 5 Cl. & Fin. 104; Cox v. Bassett, 3 Ves: 155; Kendall v. Granger, 5 Beav. 300; Tudor’s Charitable Uses, 223; Boyle on Charities, 281; Nash v. Morley, 5 Beav. 182; Mitford v. Reynolds, 1 Phillips, 185; Chamberlain v. Stearns, 111 Mass. 267; Vidal v. Girard, 2 How. 195; Baptist Ass’n v. Hart, 4 Wheat. 1; Jackson v. Phillips, 14 Allen, 539; Rose Will Case; Babb v. Reed, 5 Rawle, 15; 2 Jarman on Wills, 762; Powell on Devises, Rule 10; Williams on Executors, § 978; 1 Redfield on Wills, 433; Chambers v. Brailsford, 19 Ves. 654; Peacock v. Steckford, 3 De. G. M. & G. 73; Brown v. Lyon, 6 N. Y. 419; Corrigan v. Kierman, 1 Bradf. Sur. 208.
    The particular bequest to found or endow a charitable or other institution being void in the trustees, it must go to the Home for the Friendless, as the object of the testator’s bounty clearly expressed: 2 Williams on Executors, § 1310; Hill on Trustees, 134; 2 Redfield on Wills, 496; Perry on Trusts, § 160.
    Where there is a devise to charity generally, and the particular purpose fails, there will be no resulting trust to the next of kin: Perry on Trusts, §744; 2 Redfield on Wills, 518; Sanderson v. White, 18 Pick. 328; Hill on Trustees, 123; Moggridge v. Thackwell, 7 Ves. 69; Mills v. Farmer, 1 Mer. 55; Story’s Eq., 1168; Duke on Charitable Uses, 466.
    A gift to a charitable institution will be presumed to be a charitable gift, though no purpose is named: Everett v. Carr, 59 Me. 325; Evangelical Ass’n App. 35 Penn. 316; Burr v. Smith, 7 Ves. 241; Earl v. Wood, 8 Cush. 430; Dexter v. Gardner, 7 Allen, 243; Hendrickson v. DeCow, Sax. 577.
    Where the object is charity, a less accurate and definite declaration of intention will suffice to create a trust against the next of kin, than would be required in other cases for that purpose: Hill on Trustees, 121; Morice v. Bishop of Durham, 9 Ves. 405; Mills v. Farmer, 1 Mer. 94.
    If the will points to any particular charity, the court ought not to direct it to any other prrrpose: Mills v. Farmer, 1 Mer. 94; Att’y Gen. v. Syderfin, 1 Vernon, 224; 2 Frem. Cas. 330.
    When the particular purpose fails, there will be a cy fres application to such purpose as will be supposed to come nearest the intention of the donor: Hill on Trustees, 462; Att’y Gen. v. Boultree, 2 Ves. 379; Baptist Ass’n v. Smith, 4 Wheat. 1; Heuser v. Harris, 42 Ill. 425; Bishop of Hereford v. Adams, 7 Ves. 324; Att’y Gen. v. Baloil Coll. 9 Mod. 407; Martin v. Morghan, 14 Sim. 230; Gilman v. Hamilton, 16 Ill. 225.
    The question of general intention in favor of charity must be gathered from the entire will: Hill on Trustees, 451; De Themines v. De Bonneval, 5 Russ. 288; Att’y Gen. v. Bishop of Oxford, 1 Bro. Ch. 444; Att’y Gen. v. Grocers Co. 12 Law Jour. 196.
    Where the legacy is to charity, the court will consider charity as the substance, and if the mode pointed out fails, will provide another mode by which it may take effect: Story’s Eq. § 1167; Mills v. Farmer, 1 Mer. 94; Moggridge v. Thackwell, 7 Ves. 36; Att’y Gen. v. Ironmongers Co. 2 Beav. 318; Heuser v. Harris, 42 Ill. 425; 2 Roper on Legacies, 175; Boyle on Charities, 220; Tiffany and Bullard on Trusts, 732; Att’y Gen. v. Hickman, 2 Eq. Cas. 193; Att’y Gen. v. Glegg, 1 Atk.
    In the case of a charity bequest, the court will assume the office of executor on the failure or refusal of the trustee to act; Hill on trustees, 486; Gower v. Mainwaring, 2 Ves. Sen. 87; Moggridge v. Thacknell, 7 Ves. 36; Heuser v. Harris, 42 Ill. 425; 2 Story’s Eq. 1165; Mills v. Farmer, Mer. 55; White v. White, 1 Bro. C. C. 12; Atty. Gen. v. Andrews, 3 Ves. 633; Atty. Gen. v. Boultbee, 2 Ves. 380; Comm. v. Sullivan, 1 D. & Marr. 501; 2 Freeman Ch. Cas. 330; Atty. Gen. v. Stephens, 3 Mylne & K. 347; Ommanney v. Butcher, 1 T. & Russ, 151; 3 P. W. 146; 1 Atk. 164.
    An estate limited in default of appointment, is during the continuance of the power unexecuted, vested, subject to be divested by the exercise of the power: 4 Tenn. R. 39; Cunningham v. Moody, 1 Ves. 175; Madoc v. Jackson, 2 Bro. C. C. 588; Rooke v. Rooke, 2 Eden, 8; Maundrell v. Maundrell, 10 Ves. 265; Sugden on Powers, 453; 4 Kent’s Com. 324; Fearne on Contingent Remainders, 290; Perry on Trusts, § 744.
   Bailey J.

This suit was brought to obtain a construction and a determination as to the validity of certain of the provisions of the will of Henry Hobart Taylor, deceased. On the ninth day of ¡November 1875, said Taylor departed this life5 leaving him surviving, Adelaide C. Taylor, his widow, and Hobart Chatfield Taylor, his only child, and sole heir-at-law; and also leaving his last will and testament, whereby he sought to dispose of his entire estate, amounting in value, as is estimated, to three-quarters of a million of dollars, or thereabouts.

The will consists of nine sections, and the present controversy depends entirely upon the legal effect to be given to the sixth and ninth sections. Those portions of the will in respect to which no question is now made, are substantially as follows: By the first section, Albert Keep, Henry F. Fames and Henry W. King, were appointed executors of the will and trustees thereunder, and charged with its due execution. The second section directs the conversion of all the testator’s property not otherwise in said will disposed of into money, and the re-investment of the proceeds, after the payment of debts and funeral expenses, in strictly first class, interest-bearing securities, not liable to loss by fire or theft, and the making of suitable arrangements for the payment of the annuities and legacies given in the subsequent portions of the will. The third section gives to said widow the testator’s household furniture, and sundry other articles of personal property. The fourth directs the settlement upon said widow of a sum equal to one-third of the net proceeds of the testator’s remaining estate (or at least two hundred thousand dollars, if said estate should yield less than six hundred thousand dollars), so that she should receive the income, or interest thereof semi-annually, during the whole of her natural life, the principal sum and increase thereof to descend, at her death, to said Hobart Chatfield Taylor,'in case he should survive her; but in case said widow should survive said son, then it was provided that at her death, said principal sum should “ revert to and be devoted or fall to such charitable institution as may be founded in pursuance of the provisions hereinafter contained.” It was provided, however, that if said settlement upon said widow was not acceptable or satisfactory to her, she should, in lieu thereof, receive at once full control and possession of an entire one-third of said estate, without restrictions or conditions. The fifth section devised to said Hobart Chatfield Taylor, in fee, a certain lot of land in Chicago; the-seventh' settled a certain annuity on the mother of the testator, and the eighth gave to the widow the custody of said son, who then was and still is, a minor, until his majority. The sixth and ninth sections of said will are as follows:

Sixth. I further settle and direct that my said executors or trustees, shall settle upon my said son, Hobart 0. Taylor, a further principal sum of fifty thousand dollars, to be invested in such manner and form (in interest-bearing securities), that the interest thereon shall enure to my said son, semi-annually, during the whole of his natural life, and that at his death, the aforesaid principal sum shall fall to his children, if he have any, but to the charitable institution hereinafter mentioned (or to such other charitable institution as my executors shall designate), in case my son shall die without issue.”

Winth. All the rest, residue and remainder of my estate, whatsoever, that may remain after fully providing for the payment of the debts, expenses, legacies, annuities Ind settlements, or other disbursements hereinbefore indicated or mentioned, according to to the spirit of what I have written, I do give, devise and bequeath to Henry W. King, Henry F. Fames, Albert Keep, Wirt Dexter, O. S. A. Sprague, Thomas M. Avery, Henry Keep, and Hamilton B. Bogue (all of the city of Chicagó and county of Cook), in trust, the same to be by them applied and devoted to the founding or endowing here, in the city of Chicago, upon a lasting basis, of such charitable or other institution, as in their opinion (or in the opinion of a majority of them), is most needed, and will do the most positive and enduring good, and the least harm; provided, that if any or either of the nine trustees above named- shall die before this, will comes into effect, or before a permanent organization of such proposed charity is effected, that the survivors shall have full power to select persons to fill vacancies in their number; and provided, further, that if the' maj'ority of said trustees shall be unwilling or deem it inexpedient to organize a new charity, they may duly certify"'the same to my administrators and executors, who shall then pay over the same to the lawful-managers or trustees of ‘The Home for the Friendless,’ in the said city of Chicago.”

To test the validity of the trust created by the ninth section of the will, as well as of the possible appropriation to charitable uses of the bequest given by the sixth section, said Hobart Cliatfield Taylor, by his next friend, exhibited in the Circuit Court of Cook County, his bill in chancery against the executors and trustees named in the will, and The Home for the Friendless, charging that the provisions of said ninth section are inoperative and void, by reason of the uncertainty and indefiniteness of the beneficiaries thereunder, and praying to be decreed tó be entitled, as heir-at-law of. said testator, to the property embraced in said residuary bequest; and also praying that the contingent bequest to charity of the fund mentioned in the sixth section be declared void by reason of the want of definiteness as to the beneficiaries thereof, and that said fund be decreed absolutely to the complainant for his own use and "benefit. A cross-bill was afterwards filed by said executors, and also by The Home for the Friendless, the former insisting upon the validity of the will and of the trust thereby vested in said trustees, and praying for a corresponding construction of said sections, and the latter claiming that the provisions of said ninth section are inoperative and void as a bequest for founding or endowing a charitable or other institution, and that said Home for the Friendless is alone entitled to receive the same, and praying for a decree to that effect. Issues were duly formed on the original bill and cross-bills, and on final hearing a decree was entered dismissing the original bill, and also the cross-bill of The Home for the Friendless, and construing said will in accordance with the prayer of the cross-bill of - the executors. From this decree both said Hobart 0. Taylor and The Home for the Friendless have appealed to this court.

It is a well settled general principle of law that courts of equity carry trusts into execution only when they are certain and definite in their character. If a trust is created, which by its terms is so vague and indefinite that courts of equity cannot clearly ascertain either the objects or the persons who are to take, such trust will be held to entirely fail, and the property will fall into the general funds of the author of the trust. 2 Story’s Eq. Juris. § 979 a; Wheeler v. Smith, 9 How. (U. S.) 55, 79. To this general rule, trusts for charitable purposes are undoubtedly an exception. Such trusts are upheld, although expressed with great generality and vagueness. Thus a gift or devise made without any purpose being specified beyond the general intention that it be applied to a charitable purpose, will be upheld, and in such case, if a trusteejis_ appointed with discretionary powers, he may select the charity to he established, and determine the manner in which it shall be administered.

The exception, however, is strictly limited to trusts for purposes of charity, and in order that a gift or devise to charity should possess that certainty which will give it validity, the language employed must require that the fund be expended for some charity according to the legal signification of that word, and for nothing else. If the language of the gift or devise leaves to the trustee a discretion to expend the fund for a purpose non-eharitable, or for purposes partly charitable and partly non-charitable, it will not be upheld. In such case the trustee may expend the whole fund for a purpose which is not charitable, and at the same time execute the exact power given him under the will. The language employed by the devisor must devote the fund definitely and entirely to charity, and if it fails so to do, the courts cannot establish or administer the fund as charitable.

The word charity, in its widest sense, denotes all the good affections which men ought to bear towards each other, and in this sense it embraces all that is usually understood by the word benevolence, philanthropy and good will. In its more restricted sense it means merely relief or alms to the poor. In neither of these senses is it employed by the courts when used as descriptive of those uses and trusts which will be upheld as charitable. The words cha/rity and charitable uses, at least in this State, where the statute of 43 Elizabeth, chap. 4, commonly known as the Statute of Charitable Uses, is held to be in force, must be’determined with reference to the provisions of that statute. Among the results accomplished by the statute of Elizabeth was the establishment of an enumeration or kind of definition, standard or test, to which all gifts and grants in trust could be brought in order to determine whether they were charitable. Accordingly, since the statute, no bequests are deemed within the authority of chancery and capable of being established and regulated thereby, except bequests for those purposes which the statute enumerates as charitable, or which, by analogy, are deemed to be within its spirit or intendment. Perry on Trusts, §§ 696, 697; 2 Story’s Eq. Juris. § 1155. It ls true, many purposes not enumerated in the statute have been held to be charitable on the ground that though not within its letter, they are within its spirit, intention and principle. On the other hand, many objects of a general nature, though laudable and beneficent in their character, and of general utility, are held not to be included within the legal definition of charity.

In giving construction to the will before us, if it be found that the language employed by the testator, devoted his bounty definitely and entirely to charity, according to the legal signification of.the word, and left to his trustees no- discretion to devote the fund, in any event to any purpose not charitable, it must be upheld as a bequest to_ charity, notwithstanding the uncertainty and indefiniteness of the beneficiaries to whose use it is to be applied. / If on the~other hand it appears to have been the purpose and intention of the testator to vest in his trustees a discretion to devotejthe fund, in anyyevent, or under any circumstances to a purpose not included within the legal definition of charity, his bequest is too uncertain and indefinite to be sustained, and must be held to be void.A

In determining the purpose and intention of the testator, the language which first demands our attention is that by which he describes the institution which he' directs his trustees to found and endow, and by which he directly invests them with the power and discretion in relation thereto, which he intended that they should exercise. Without losing sight of the principle that the entire will should be construed together, it is here we may reasonably expect to find the extent and limitations of that power and discretion stated and defined, and if the statement be such as of itself to leaveyno doubt of the testator’s purpose and design, little force can be given to other mere general expressions by way of qualifying the intention thus distinctly announced. The language here referred to is that the fund bequeathed shall be applied and devoted by the trustees “ to the founding or endowing here, in the city of Chicago, upon a lasting basis, of such charitctbl'e or otherinstitution as in their opinion (or in the opinion of a majority of them), is most needed, and will do the most positive and enduring good and the least harm.”

It would be difficult, we think, to invest the trustees with a broader discretion in relation to the character of the institution to be founded and endowed than this language, standing alone? would appear to import. Hor does it seem to us that the language is in the least ambiguous, or that any doubt or uncertainty as to the purpose and intention of the testator is created by the insertion of the words “ or other ” between the words “ charitable ” and “ institution.” Undoubtedly those words, if given the force properly belonging to them, widen very largely the discretion of the trustees, as well as the range of objects from which the testator seeks to empower them to select the beneficiaries of his bounty. But certainty as to the intention of the testator, is a very different thing from certainty as to the beneficiaries which may ultimately be selected by the trustees, in the exercise of their discretion. The question is not what the trustees may do in the execution of their power, but what are the character, extent and limitations of the power itself. Ho discretion can be confided to a trustee or agent, without involving an element of uncertainty as to how the discretion will be exercised, but the intention of the principal or author of the trust in granting the discretion may he precisely defined, however broad the discretion itself may be. Here the intention of the testator, as evidenced by this language, seems to be to vest the trustees with_a.very. wide^scretionL The intention itself is precise, certain and well defined, although the discretion granted is sufficiently broad to involve all the elements of indefiniteness and uncertainty.

The language of the clause last above quoted, we think, taken together, gives evidence that the words “_o.r other” were inserted by the testator in the connection in which we find them, designedly, and with a definite purpose. It may be observed that while the rules of law forbid the resort in construing a will, to any evidence of the testator’s intention beyond that furnished by the language which he has employed, still it is competent 'to construe it in the light of the circumstances surrounding its execution. It appears, from the evidence, that in this case the will was written by the testator himself, without the employment or advice of an attorney or scrivener. It further appears that he was not a man learned in the law, although he seems to have been a highly successful business man, as well as a gentleman of a high order of intelligence. The will, in many of its parts, is inartificially drawn, so far as relates to questions of technical legal phraseology, yet it bears upon its face evidence of profound thought, study and reflection in relation to the substantial purposes which he sought to sub-serve by the final disposition of his large estate. He was evidently sufficiently conversant with social science, and had sufficiently observed the workings of those institutions by means of which the charitable seek to alleviate and diminish poverty, suffering, vice, ignorance, ^degradation and crime among men, to know that public charities ordinarily are far from being unmixed benefits to their recipients. He had doubtless discovered, as have many others, that the indiscriminate bestowal of charities upon the poor and needy, has, by discouraging habits of industry and self-reliance,"a tendency to create the pauperism it is professedly designed to alleviate. And the same may perhaps be found to be true in a greater or less degree of many,'if not all the charitable institutions which in modern times have, on the whole, proved so greaira blessing to mankind.

Recognizing, tfien, as he apparently did, that, charitable as well as other public institutions, were likely to be productive of harm as well as good, he enjoined upon his trustees, as the only limitation upon their discretion in making choice of the institution to be founded and endowed! that it should be an institution which, in their opinion, was most needed, and would do the most positive and enduring good, and the least harm. Hot wishing to trust his own judgment in making the selection, he sought to avail himself of tKeTjiidgment of eight discreet and intelligent gentlemen, of extensive acquaintance and large business experience. Hot wishing to determine for himself the question whether, after all, a charitable or a non-charitable institution was the most needqd, and likely to do the most positive and enduring'good, and the least harm, he chose to refer that question also to his trustees, and to charge them with its decision.

It would seem, then, that the words or other ” are of the very substance of the scheme which the testator saw fit to adopt for the purpose of carrying out and giving effect to his philanthropic design. We are unable to adopt the construction which involves a rejection of these words altogether, unless such construction is necessitated by clear and unmistakable evidences of the testator’s intention, found in the other provisions of the will. In the construction of wills “ every word is to have its effect, provided an effect can be given to it not inconsistent with the general intent of the whole will, taken together; for a testator is not to'be supposed to have used words without meaning, if it is possible to give them a consistent meaning; and the rule is not to reject any words unless there cannot be any rational construction of those words as they stand.” Ward on Legacies, 194.'

It is insisted, however, that various expressions in the will indicating a general charitable disposition or intention on the part of the testator, should be held to so far control the language of the ninth section as to divest the trustees of the discretion there given them to apply the bequest to other than a charitable purpose, and to practically expunge the words “or other” from the will. It should be observed that in no case are the expressions here referred to used by way of granting, modifying, limiting, explaining, or seeking to control, the power or discretion vested in the trustees. "Part of them are indicative of a general charitable purpose, and nothing more. Others refer to the institution to be founded by the trustees as a charity or charitable institution. Can such expressions or mere references control the language by which the gift itself is made, and the manner in which the trust is to be administered prescribed, so long as that language is clear, sensible and unambiguous? We think not.

The first reference to a charity or charitable institution is in the fourth section, where it is provided that, in a certain event, the fund in that section mentioned, which was a fund totally distinct from that bequeathed by the ninth section, should fall to such charitable institution as might be founded in pursuance of the subsequent provisions of the will. Here is no attempt to enjoin upon the trustees the founding of a charitable institution, nor a clear expression of an expectation that the institu-' tion to be founded would be charitable and not otherwise. The next reference is in the sixth section, where it is provided that a certain other fund should, in a given contingency, go to the charitable institution afterwards mentioned, or such other charitable institution as said executors should designate. Here it is by no means clear that any reference whatever is made to the institution to be founded by the trustees. The Home for the Friendless, which the record clearly shows to be a charitable institution, is mentioned by name in the ninth section, and the language of the sixth section may well .be construed to mean that in the contingency supposed, the fund there spoken of should go to the Home for the Friendless, or any other charitable institution which the executors might designate, which might or might not be the institution to be founded by the trustees. The most pertinent and forcible references to a charity or charitable purpose, are those found in the latter part of the ninth section itself, in which provision is made for filling vacancies in case of death of any of the trustees “ before such proposed charity is effected,” and where it is provided that if a majority of the trustees shall deem it inexpedient “ to organize a new charity, they may certify the same,” etc. This language undoubtedly alludes directly to the institution which the trustees were expected to found, but it does not, in terms, assume to determine the character of that institution, and is, at most, an inaccurate and inadequate reference to it.

One of the recognized rules to be observed in the construction of wills is: “That an express and positive devise cannot be controlled by the reason assigned, or by subsequent ambiguous words, or by inference and argument from other parts of the will; and accordingly such devise is not affected by a subsequent inaccurate recital of or reference to its contents, though recourse may be had to such reference in case of ambiguity or doubt.” 1 Bedfield on Wills, 426, note. “ A clearly expressed intention in one portion of the will is not to yield to a doubtful construction of any other portion of the instrument.” Bell’s Adm’r v. Humphrey, 8 W. Va. 1.

While these various references to a charity or charitable institution, as we have already said, indicate a general charitable intention on the part of the testator, and may fairly be held to imply an anticipation on his part that the trustees, in the exercise of their discretion, would most probably found some institution which the law would deem charitable, they do not contain the expression of an affirmative wish, direction or desire, that such should be the result, and cannot, therefore, have the effect of even precatory words.

After duly considering, then, and giving proper weight to the language of the entire will, we are brought to the conclusion that the testator, by the ninth section, gave expression to a clear and manifest intention to vest his trustees with a discretion to devote the residuary fund to founding and endowing in the city of Chicago, an institution which might be either charitable or non-charitable, they being bound in determining what it should be only by a consideration of what was most needed, and what would do the most positive and enduring good, and the least harm. Any attempt to narrow or abridge the discretion thus clearly and with manifest purpose given to the trustees, would only be substituting the will of the court for the will of the testator. The bequest must stand or fall, as the testator has seen fit to make it. Sedulously as the law strives to uphold, wherever it can, testamentary dispositions of property, and especially bequests to charitable uses, such result cannot be attained contrary to the clearly expressed intention of the testator. In such case his intention must prevail, even though a failure of the bequest may be the consequence. The rules of construction cannot be strained to bring a devise within the rules of law.

Hor does it seem to us that any case is here presented for an application of the doctrine of cy pres. It is not a ease of a bequest to charity, and a failure of the particular mode in which that charity is to be effected. The bequest itself is not made definitely and exclusively to charity, but is so made that the trustees may, if they choose, devote the whole of it to a purpose which the law pronounces non-charitable. The doctrine of cypres is to be resorted to, not for the purpose of modi, fying and restraining the intention itself of the testator, so as to bring it within the bounds of a legal charity, but where the fund is once definitely devoted to charity, and no mode for its application is prescribed, or the mode selected by the testator fails, then the courts, under the eypres power in order that the charity itself may not fail, will substitute another mode of devoting the property to charitable purposes, as near as may be in accordance with the expressed intention of the testator.

It follows, then, that the residuary bequest, at least so far as the trustees are concerned, is void for uncertainty. It is true, they may devote the fund to charity, but they are not bound so to apply it. It is consequently a trust which a court of chancery cannot supervise or carry into execution. Morice v. Bishop of Durham, 9 Vesey Jr. 399.

The next question to be considered is, whether on failure of the trust in the trustees, the fund should go to The Home for the Friendless or to the heir-at-law?

The Home for the Friendless, as has been remarked, appears from the evidence to be a charitable institution in the strict legal sense. The fund then must go to that charity, unless by the terms of the will its rights are involved in the same indefiniteness and uncertainty, and subject to the same discretion on the’part of the trustees which exists in case of the institution the trustees are directed to found and endow. The'language is, “ and provided further, that if the majority of said trustees shall be wn/willvng, or deem it inexpedient to organize a new charity, they may duly certify the same to my administrators and executors, who shall then pay over the same to the lawful managers or trustees of ‘ The Home for the Friendless ’ in the said city of Chicago.”

It will be observed that this language does not provide for giving the fund to The Home for the Friendless in case of a mere failure or lapse of the trust reposed in the trustees. The' condition upon which the right of this institution is to arise is of an entirely different character. That condition, manifestly, is the exercise of a discretion or choice by the trustees. The scope of that discretion is to found and endow a charitable institution or a non-charitable institution, or to suffer the fund to go to this particular charity. Whether it shall take the latter direction is left wholly discretionary with them. The Home for the Friendless does not occupy the position of a residuary legatee, appointed to take in case of failure for any cause to found another institution, hut is only named by way of addition to the range of charitable institutions, from which the trustees were empowered to select. As to all other objects, whether charitable or otherwise, they were restricted to the founding and endowing of a new institution. Existing' institutions generally were outside the range of the testator’s bounty. He chose, however, to make an exception in favor of The Home for the Friendless, and as the giving, of the money to that institution would not involve the necessity of retaining the fund in the hands of the trustees for administration, as in case of founding a new institution, special provision was made in case this particular charity became the object of their choice for transferring the fund directly to the trustees already in. charge of and administering its affairs. We think, then, that precisely the same indefiniteness and uncertainty pervading the trust in the hands of the trustees, extends to and vitiates those provisions of the will relating to The Home for the Friendless. By the terms of the will the trustees might devote the fund to this particular charity, but they were not hound so to apply it, nor can the courts coerce them so to do.

The only remaining question in the case relates to the disposition to be made of the fifty thousand dollars mentioned in the sixth section of the will, in case of the death of Hobart Ghat-field Taylor without issue. The provision is that, in that event, this fund shall go “to the charitable institution hereinafter mentioned, or such other charitable institution as my executors sliall designate.” Here the will manifestly devotes this fund to charity and nothing else. A charitable institution, “The Home for the Friendless,” is named in the will. The executors, in the event named, may give the fund to that charity, or select another. “ If the bequest be for charity, it matters not how uncertain the persons or the objects may be, or whether the persons who are to take are in esse or not, or whether the legatee be a corporation, capable by law of taking or not, or whether the bequest can be carried into exact execution or not; for in all these and the like eases, the court will sustain the legacy and give it effect according to its own principles, and where a literal execution becomes inexpedient or impracticable, the court will execute it as nearly as it can, according to the original purpose, or ey pres.” Heuser et al. v. Harris’ Ex’r et al. 42 Ill. 425.

We are of opinion, then, that the disposition of the fifty thousand dollars provided for in the sixth section, in case of the death of the legatee therein named without issue, is a valid bequest to charity, and should be sustained as such.

The decree of the court below will be reversed and the cause will he remanded, with instructions to enter a decree dismissing the cross-hill of the executors, and also the cross-hill of The Home for the Friendless, and to enter a decree under the original bill of complaint in accordance with the views expressed in this opinion.

Decree reversed.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    Rudolph Rosenberg et al. v. Mary Barrett.
    1. Practice on appeal from a justice—Summons to appellee— Transcript to be piled—Waiver.—While it is the rule that on taking an appeal from a justice by filing an appeal bond in the appellate court, a summons must he issued to the appellee, or his written appearance entered therein, before the appellate court can obtain jurisdiction of the person; and that in the absence of a transcript from the justice, the appellate court has not jurisdiction of the subject matter, so as to dismiss the appeal or render judgment without the consent of the parties, yet where it appears that both parties voluntarily proceeded to trial without objection to the want of service, or failure to file a transcript, these defects will be considered as waived, and the court obtains jurisdiction of the parties and subject matter, and may render judgment in the cause.
    2. Parties—Misjoinder—Must be joint liability—Iu actions ex contractu, the plaintiff, in order to recover, must establish a cause of action against all the defendants, and the record failing to show a joint liability of the defendants on the contract sued on, a joint recovery against all cannot be sustained.

      3. When objections will not be considered.—The objection that the damages awarded by the jury were excessive, not being specifically made by appellants, either in their motion for new trial or in their assignment of errors, it is not considered by this court.
    Appeal from, the Superior Court of Cook county; the Hon. Joseph E. Q-aey, Judge, presiding.
    Me. C. S- Beattie, for appellants;
    that the court had no jurisdiction of the cause, cited Rev. Stat. 1874, 648; Baines v. Kelley, 73 Ill. 181; Reed v. Driscoll, 9 Chicago Legal News, 206; Camp v. Hogan, 73 Ill. 228.
    There being no joint liability, the judgment is erroneous: C. & St. L. R. R. Co. v. Easterly, 7 Central Law Jour. 337.
    The verdict as shown- by. the evidence was excessive: Pierce v. Roche, 40 Ill. 292; Schwabacher v. Wells, 49 Ill. 257; Casrell v. Hays, 51 Ill. 261; Ragor v. Kendall, 70 Ill. 95; Reynolds v. Lambert, 69 Ill. 495; I. C. R. R. Co. v. Chambers, 71 Ill. 519; T. W. & W. Ry. Co. v. Moore, 77 Ill. 217.
   Bailey, J.

This suit was originally commenced by appellee before a justice of the peace of Cook county, to recover a balance which she claims was due her from appellants for work, labor and services. A judgment was rendered in her favor by the justice of the peace for one hundred and fifteen dollars and costs. On appeal to the Superior Court a trial was had resulting in a verdict for appellee for sixty-five dollars, on which a judgment was rendered against appellants.

The first error’assigned, which we deem it necessary to notice, calls in question the decision of the court below denying appellant’s motion in arrest of judgment. It appears that the appeal from the justice of the peace was taken by filing an appeal bond with the clerk of the Superior Court, and that upon filing said bond, a supersedeas was duly issued to the justice of the peace. The record, however, fails to show the issuing from the Superior Court of any summons to appellee, or the entry by appellee of any appearance m writing, and no transcript appears to have been sent up by the justice of the peace of the proceedings before him. Such being the state of the record, it is urged that the Superior Court had no jurisdiction to try the cause, and that appellant’s motion in arrest of judgment should have been sustained on that ground.

It is doubtless the rule, where an appeal from a justice of the peace is taken by filing the appeal bond in the appellate court, that a summons must be issued to the appellee, or his appearance must be entered, before the appellate court can obtain jurisdiction of his person. R. S. 1874, Chap. 79 §§ 68, 70. It is also the rule that in the absence of a transcript, the appellate court has no such jurisdiction of the subject matter as will enable it to dismiss the appeal without the consent of the appellant, or to force the parties to a trial and render judgment without their consent. Reed v. Driscoll, 84 111. 96. Where, however, without the issuing of summons or the entry in writing of the appearance of the appellee, and in the absence of a transcript, both parties voluntarily appear and go to trial without objection, as was done in this case, the defect of service as well as the want of a transcript, is waived, and the court obtains jurisdiction both of the parties and the subject matter sufficient to authorize the rendition of a judgment. It is true the transcript supplies the place of a declaration, and unless it is waived, the proceedings in the appellate court must be based upon it. But we know of no rule of law which prohibits parties to suits in courts of record appearing and waiving formal pleadings, and going to trial without them. After such waiver, the absence of pleadings is no ground for arresting the judgment.

It is next urged that the evidence fails to establish the liability of Mercy Rosenberg, one of the appellants, and that the judgment against her is erroneous.

The evidence shows that Rudolph Rosenberg was the proprietor of a laundry, and that appellee was an employe therein. There is no evidence directly tending to show that Mercy Rosenberg, who was the wife of her co-defendant, had any interest whatever in the laundry. Her husband, the only witness who seems to have any knowledge on the subject, testifies that he was carrying on the laundry business, and that his wife had no interest therein, but that she was employed to oversee the work, and during his absence to take the place of a clerk. The only evidence we are able to discover having the remotest tendency to show that Mrs. Rosenberg had any interest in the laundry, was that of appellee herself. She first states: “ I went to work for Mr. Rosenberg on the 22nd of May, 1875.” Her counsel then put to her the following question: “State when you went to work for Mr. Rosenberg and his wife, the defendants?” To which she answered: “22nd of May, 187o; I did laundry work.” Counsel then put to her this question: “They kept a laundry?” -To which she replied: “Yes, sir.”

It is impossible to give to this testimony any considerable weight, as tending to show that Mrs. Rosenberg was jointly interested with her husband in the business. She first says she worked for Mr. Rosenberg, and she is made to couple Mrs. Rosenberg with her husband by means of leading questions adroitly framed, so as to elicit a seeming response to that effect. It is scarcely probable that she really intended to be understood as swearing that Mrs. Rosenberg was in any sense a proprietor. Mr. Rosenberg’s testimony on this point being then substantially uncontradicted, we fail to perceive upon what theory a joint verdict and judgment against the appellants can be sustained.

The rule is well settled, that in actions ex contractu, the plaintiff, in order to recover, must establish his cause of action against all the defendants, and that if the proof fails to show all liable on the contract described in the pleadings, a recovery cannot be had. Section 36 of the Practice Act provides, "it is true, that “ in actions upon contracts, express or implied against two or more defendants as partners, or joint obligors or payors, whether so alleged or not, proof of the joint liability or partnership of the defendants or their Christian or surnames, shall not in the first instance be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or unless the defendant shall file a plea in bar denying the partnership or joint liability, or the execution of the instrument sued upon verified by affidavit.”

It cannot be held that this statute relieves a plaintiff from the necessity of establishing his cause of action against all the defendants. It merely relieves him from the common law burden of proving their joint liability in the first instance. Hence, if it affirmatively appears from the plaintiff’s testimony that one of the defendants is not liable upon the contract sued on, or if such fact is established by the defendant’s evidence, no recovery can be had. Davidson et al. v. Hill, 1 Bradwell, 70; Garland et al. v. Peeney, Id. 108. It appearing from the evidence that Mrs. Rosenberg is not liable to appellee for the services for which this suit is brought, the judgment must be reversed.

Complaint is made by appellants that the damages awarded by the jury to appellee are excessive. As this point was not specifically made by appellants, either in their motion for a new trial or in their assignment of errors, we are not inclined to consider it, but for the error indicated above the judgment will be reversed and the cause remanded.

Judgment reversed.


text:
    The Illinois Land and Loan Company v. Martin Beem et al.

      1. Premature action—Precedent demand.—The contract sued upon provided, among other things, that certain specified payments should be made by the company “on reasonable request.” The legal effect of this language is equivalent to an agreement to pay within a reasonable time after request. This being the case, the debt could not mature until demand or request made, and a reasonable time for compliance had elapsed.
    2. Proof of request—Demand upon an attorney.—The only evidence tending to show a demand, was that appellee’s intestate called upon the attorney of appellant'and requested payment by appellant. It does not appear that the person upon whom demand was made was the general attorney for appellant in all its law business; and even had such been the fact, a demand upon him as the general attorney of the company would not have been sufficient. A demand for the money, in order to avail appellee, should have been made upon some officer or agent of the company having authority to act for it, by paying over the money or refusing to make such payment. The attorney of the company, in virtue of his employment as such, would have no control over the funds of the company, and hence no authority to make payment or refuse the demand.
    3. Waiver of demand—Refusal based on other grounds.—The attorney upon whom demand was made, replied that payment could not be made until the legal heirs of the deceased had been ascertained, and after-wards testifying on the trial stated as a reason why payment had not been made, that the heirs had repudiated the contract of the deceased and the consideration for the payment had failed. Although in some cases where the refusal of a party to perform has been based upon other grounds than the want of demand, such refusal has been deemed a waiver of the demand, the evidence in this case will not warrant such a conclusion. It does not appear that there was any formal refusal, or that the company assigned the disaffirmance by the heirs as a reason for non-payment.
    4. Failure of consideration.—A total failure of the consideration was pleaded by the appellant as a defense to this action, and to support such plea the disaffirmance by the heirs of the contract of the deceased, who was a minor, was given in evidence. -The legal right to make such disaffirmance is conceded. -The consideration recited in the contract, was the conveyance of certain land, and it also authorized and empowered appellant “ to secure, collect, take possession of, have and retain for its own use, all such rights, interests and proceeds of sales growing out of * * * * said property,” etc. These rights and interests, whatever they may be, appear to be additional to those granted by the deed conveying the land, and as there does not appear to be any disaffirmance of these by the heirs, there cannot be said to be a total failure of consideration.
    5. Disaffirmance—How manifested.—Disaffirmance is a matter both of act and intention. In order to a disaffirmance of a deed executed during infancy, either by the infant himself after attaining his majority, or by his legal representatives in case of his death, there must be some act performed indicating an intention to disaffirm, and such act must be. inconsistent with the continued validity of the deed executed during infancy, so that the two-cannot properly stand together.
    Error to the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presiding. 1
    Messrs. Bicaby & Landis, for plaintiff in error;
    that there-was a total failure of consideration, and upon the question of disaffirmance, cited Illinois Land & Loan Co. v. Bonner, 75 Ill. 315; Hughes v. Watson, 10 Ohio, 127; 3 Bac. Abr. 138; Tyler on Infancy, 69; 1 Parsons on Contracts, 328; Prout v. Wiley, 28 Mich. 164; Dixon v. Merritt, 21 Minn. 196; Young v. McKee, 13 Mich. 555.
    As to the person upon whom demand should he made: 1 Parsons on Contracts, 77; Story on Agency, § 140.

      Messrs. Page, Plum & Kelsey, for defendants in error;
    that there was not a total failure of consideration, cited Bowman v. Long, 11 Chicago Legal News, 42; 1 Parsons on Contracts, 505.
    That there was a waiver of the demand: Norwich v. Western Ins. Co. 34 Conn. 561; Wolf v. Willitts, 35 Ill. 88; Batchelor v. People’s Ins. Co. 3 Ins. Law Jour. 122; McBride v. Republic Ins. Co. 30 Wis. 562; The People v. Adamire, 39 Ill. 252.
   Bailey, J.

On the twentieth day of January, 1870, Percy W. Bonner, who was then a minor between nineteen and twenty years of age, conveyed to the Illinois Land and Loan Company all his right, title and interest in and to a certain lot of land in the city of Chicago; and at the time of making such conveyance, and as the real consideration therefor, received back from said company a contract by which said company, among other things, agreed to pay him twenty-five dollars per month up to May 1st, 1871, the date when he' should attain his majority? and the sum of $83.33 per month during the remainder of his life. Said contract further provided that in case of the decease of said Bonner before the first day of June, 1871, said company should pay “ on reasonable request ” certain specified sums of money, amounting in all to $5,000, as donations or bequests from said Bonner to certain persons therein named. Among the persons thus named was Mrs. D. King, wife of Harrison D. King, of Chicago, to whom it was provided that $500 of said money should be paid; In the latter part of July, 1870, Bonner died. This suit was afterwards brought by Mrs. King to recover of the Illinois Land and Loan Company said sum of $500, appointed by said contract to be paid as a donation or •bequest to her. During the pendency of the suit, Mrs. King died, and the appellees, her administrators, were substituted as plaintiffs. A trial was thereupon had in the court below, resulting in a judgment in favor of appellees against appellant for $740 and costs.

It is insisted by appellant that the evidence fails to show any sufficient demand or request for the payment of the money in question prior to the commencement of the suit.

It seems to have been conceded in the court below, and it is not questioned here, that under the provisions of this contract, before appellant was liable to suit, payment of the money must have been requested, and a reasonable time given for compliance with the request. Such undoubtedly is the legal effect of the language of the contract. The agreement was to pay on reasonable request, which was equivalent to an agreement, to pay within a reasonable time after request. The debt, then, could not mature until demand or request was made, and a reasonble time for compliance had elapsed.

"We think the evidence wholly fails to establish such demand or request as was contemplated by the agreement. The only-evidence tending to show a request, was that of Harrison D, King, the husband of the original plaintiff, who testifies that five or six days after the death of Bonner, his wife and he went to the office of Mr. Scoville, who at the time was an attorney for appellant, and that Mrs. King told Mr. Scoville that she cam e to see about getting the $500 mentioned in the agreement; that Mr. Scoville told her they could not do anything about it until they had found out who the heirs were, and settled with them first; that he wanted her to help him find out who they were, and that she gave him the names of some of them. Mr. Scoville testifies that he does not remember the interview distinctly, but presumes it was substantially as stated by Mr. King. He further testifies that in 1870, he was the attorney for appellant in some matters but not in all; that the contract in question was in the handwriting of W. K. Beed, who, as it appears, was appellant’s cashier and general manager, except.the last clause, which was in the handwriting of the witness; that witness made out the original draft of the contract and was attorney for the company in that connection. He was then asked whether he remembered Mr. and Mrs. King’s coming to him as Mr. King testified, and if so, what he, the witness, claims was the reason the company did not pay her the $500. In answer, after stating that he did not remember distinctly about the interview, etc., as already mentioned, he says: “ The reason the company did not pay her was, it claimed that the only heirs at law of Percy W. Bonner repudiated or disaffirmed said contract within three years after liis death, and that the company consequently got no benefit of the contract, or of the deed of conveyance mentioned therein.”

It is manifest that a demand for the money, in order to avail appellees, should have been made upon some officer or agent of appellant having authority to act for it in relation to the subject matter of the demand, by paying over the money or refusing to make such payment. Hr. Scoville, the only person of whom a request for the money was made, was merely an attorney for appellant in some of its matters. Had he been the general attorney of the company, authorized to represent it in all its law business, we do not think the payment of this money to Mrs. King, or a refusal to pay it would have been within the purview of his authority. He could not, as the attorney of the company, have control of its funds, and so would neither have the means of making payment, nor the power of determining on behalf of his client, whether payment should be made or not. It should be observed that at the time of his interview with Mrs. King, no suit was pending involving her right to this money, nor does it appear that the matter had in any other •way been placed in his hands for adjustment.

But the evidence leaves it entirely uncertain as to how far even the relation of attorney and client existed between Mr. Scoville and the company. He was its attorney in some matters, but not in all. Precisely what matters were within the purview of his employment, does not appear. He made, it is true, the original draft of the contract, and was attorney for the company in that connection.” This, however, seems only to imply that he was employed by the company in matters connected with the drafting of the contract, which would by no means necessarily include the adjusting of rights or conducting litigations subsequently growing out of it.

Hor does it appear from the evidence, that Mr. Scoville assumed to determine for his client whether this money should be paid over "to Mrs. King or not. He merely told her that they could do nothing about it until they had ascertained who the heirs of the decedent were, and had settled with them, and desired Mrs. King to assist him in the inquiry, which she accordingly did. All this was quite as consistent with an ultimate intention on the part of the company to pay her the money as the reverse.

It is, however, insisted by appellees that the evidence tends to show a waiver on the part of appellant of the demand or request provided for in the contract. Such waiver is sought to be inferred from the testimony given by Hr. Scoville in relation to the reason why the company did not pay Hrs. King the $500 in question. We are unable to give to this testimony the effect here claimed for it. It is not pretended that such reason was stated or disclosed to Hrs. King at the time she called on the witness to see about getting her money. In point of fact such disclosure could not have been then made, as the reason stated by the witness depended upon events which did not transpire until long afterwards. The interview, between Hrs. King and the witness took place five or six days after Bonner’s death. The repudiation or disaffirmance of the contract by the heirs of Bonner, which the witness assigns as the reason why the company did not pay the money, did not take place till many months thereafter. ¡Nor is there any pretense that such disaffirmance, even after it took place, was assigned by the company to Hrs. King, or in any other way declared by it as its reason for nonpayment. The witness merely states what, at the time of the trial, was known or supposed by him to be the real reason why the company did not pay. Cases may be found where the refusal of a party to perform a contract, such refusal being at the time placed upon other grounds than the want of demand, is held to be a waiver of such demand. Here it does not ap>pear that there was any formal refusal at all; much less does it appear that the company assigned the disaffirmance of the contract as its reason for non-paymeut.

Among the defenses set up by appellant in the court below, was a total failure of consideration. In the plea presenting that defense, it is alleged that at the time of making the contract in question, Bonner was a minor, under the age of twenty one years, and that at the time of his death he had not reached his majority; that after his death his lieirs-at-law revoked and disavowed the deed of said Bonner, whereby he conveyed to appellant said lot of land; that said conveyance was the only consideration„for said contract, and that upon the revocation and disaffirmance thereof, the consideration of said contract wholly failed.

The right of the heirs of Bonner to disaffirm his deed, executed during his infancy, within the same period of time within which the infant himself, if living, might have disaffirmed it, is not called in question, as it has been directly settled by the Supreme Court in a suit in relation to this particular deed. Illinois Land and Loan Co. v. Bonner, 75 Ill. 315.

It is admitted that William B. Bonner and Cassandra Anderson were the only heirs-at-law of said Percy W. Bonner, each being entitled by inheritance to one-lialf of his estate. On the twenty-third day of June, 1873, the same being within three years after the death of said Percy W. Bonner, said William R. Bonner filed in the Circuit Court of Cook county his bill in Chancery, expressly disaffirming the conveyance to appellant and praying for a partition of said premises. Said Cassandra Anderson, as is claimed, also disaffirmed said deed on her part by a conveyance of her interest in said premises to one Charles A. Gregory, by deed dated November 2d, 1870. It is not disputed that the filing by said William R. Bonner of said bill for a partition, was effectual as a disaffirmance on his part. It is insisted, however, that such effect cannot be given to the deed from Cassandra Anderson to Gregory.

It appears that prior to the execution of said deed, said Gregory had obtained title to an undivided half of said premises, and that on the 19th day of October, 1870, an agreement was entered into between him and appellant, under which they were to become tenants in common of said premises, and owners of the same in undivided halves. It was further agreed that both of said parties would endeavor to perfect their title to said premises, so that all conflicting claims and clouds should be removed therefrom, each to pay one-half of the expenses thereby incurred, and that .any right, claim, title or interest that might be acquired by either of them until the title should be finally perfected, should enure to the mutual benefit of both.

It is claimed that the deed from Cassandra Anderson to Gregory, being executed while the foregoing contract was in force, enured to the benefit of appellant, and was precisely the same in effect as though it had been executed to appellant itself, and so must be regarded as an affirmance rather than a disaffirmance by Cassandra Anderson of the Bonner deed. Doubtless, in order to a.disaffirmance of a deed executed during infancy, either by the infant himself after attaining his majority, or by his legal representatives in case of his death, some act must be performed evidencing an intention to disaffirm; and such act must be inconsistent with the continued validity of the deed; and if the disaffirmance is sought to be accomplished by a conveyance, the subsequent deed must be inconsistent with the deed executed during infancy, so that the two cannot properly stand together. It becomes then a matter both of act and intention. Possibly had Cassandra Anderson known and understood the arrangement between Gregory and appellant, and conveyed to Gregory merely with a view to perfecting the title claimed by appellant through the Bonner deed, she would have affirmed rather than disaffirmed such deed, notwithstanding the fact that her conveyance was made to a third person. The record, however, wholly fails to disclose any knowledge on her part of the contract between Gregory and appellant. So far as appears, she treated with him as a person wholly disconnected with the title claimed through the Bonn er deed. For a new consideration paid to her by Gregory, viz: $1,000, she conveyed her interest in the land to him, as she might háve done to any other stranger to the Bonner deed. Her act, at least so far as she was concerned, evidenced an intention to disaffirm, and was inconsistent with the continued validity of the deed executed by the infant. On their face, the two deeds were inconsistent with each other, so that they cannot both stand together.

We do not perceive how the effect of this conveyance as a disaffirmance, can be obviated by a secret understanding, or arrangement between Gregory and appellant. If the title obtained by Gregory inured in whole or in part to appellant, it did so, not by force of the deed itself, but by virtue of a contract to which Cassandra Anderson was no party, of which she was ignorant, and the purposes of which she had no intention of promoting. It might with as much propriety be held that a subsequent conveyance from Gregory to appellant would obviate- the effect of this deed as a disaffirmance, as to give such effect to this secret prior arrangement. We think, under the evidence, the deed to Gregory was clearly a disaffirmance by Cassandra Anderson of the Bonner deed.

The plea, however, under which appellant sought to take advantage of the defense growing out of the disaffirmance of the deed executed by the infant, was, as we have seen, a plea setting up a total failure of consideration. The plea avers that the conveyance of the land by Bonner was the sole consideration of the contract sued on. On inspection of the contract itself, however, we find what is apparently, at least, an additional element of consideration. The contract recites, as the consideration on -which it is based, not only the conveyance of the right, title and interest of Bonner in said land, but it also authorizes and empowers appellant to secure, collect, take possession of, and have and retain, for its own use and benefit, all such rights, interests and proceeds of sales growing out of or pertaining to said property, on the part or behalf of him, the said party of the first part.” Precisely what the rights and interests here assigned to appellant were does not appear from the record, nor does the contract indicate their character sufficiently to enable us to ascertain their precise nature or value. Construing the contract, however, by such lights as we have, these rights and interests appear to us to be additional to the rights and interests granted by the deed, and as there does not appear to have been any disaffirmance of the assignment to appellant of this part of the consideration of the contract, it is impossible to say that the consideration has wholly failed. It is well settled that a defendant cannot avail himself of a partial failure of consideration under a plea of total failure, and upon this principle it necessarily follows that appellant’s plea in this case is not sustained by the proof. As the case must be remanded for a new trial, further pleas may be filed, properly presenting the defense here sought to be set up. For the want of proof of a request to pay the money sued for before the commencement of the suit, the judgment must be reversed, and the. cause remanded. Judgment reversed.


author: Pleasants, J.

text:
    Adolph H. Uphoff v. Barton A. Ulrich et al.
    1. Real estate broker—Commissions.—Appellees sued appellant for commissions, on the usual terms, for effecting a sale or exchange of real estate. The evidence showed that whatever negotiations in regard to the sale that were brought about through appellee’s agency, failed; a sale was not effected and appellees were notified that appellant's offer was withdrawn. Having failed to accomplish the sale according to their undertaking, appellees were not entitled to any commissions.
    2. Subsequent sale through other means.—The parties to the negotiation were subsequently brought together through other influences, and a trade was consummated on the basis originally proposed; but appellant’s acceptance, after revocation of the agency, of an offer made during its continuance, would not subject him to liability to appellees for commissions, the revocation having been made in good faith, with no intention of a renewal of the negotiations.
    Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding,
    Mr. Frank J. Crawford, for appellant;
    contending that there was no employment of appellees, and none can be implied from the facts in the case, cited Atwater v. Lockwood, 39 Conn. 45; McDonald v. Lord, 26 How. Pr. 404; Carman v. Beach, 63 N. Y. 97; Wharton on Agency, § 330.
    Hot effecting an exchange upon the terms proposed, appellees are not entitled to commissions: Coleman’s Ex’rs v. Meade, 5 Cent. Law Jour. 409; McGavock v. Woodlief, 20 How. 221; Barnard v. Monnot, 42 N. Y. 204; McClave v. Paine, 49 N. Y. 561; Carter v, Webster, 79 Ill. 435.
    The transaction must be completed before commissions are earned: Wharton on Agency, § 325; Simpson et al. v. Lamb, 84 E. C. L. 603; Fraser v. Wyckoff, 63 N. Y. 448; Lawrence v. Atwood, 1 Bradwell, 217; Short v. Millard, 68 Ill. 292; Baxter v. Lamont, 60 Ill. 237; Hoyt v. Shipherd et al. 70 Ill. 309; Moss v. Burling et al. 31 N. Y. 462.

      Mr. Geo. H. Leonard, for appellees;
    argued that it being-through the instrumentality of appellees that the parties were brought together and negotiations begun, they are entitled to commissions, though appellant afterward made the exchange himself; and cited Carter v. Webster, 79 Ill. 453; McGovern v. Wooley, 20 So. Car. 22; Lane v. Albright, 49 Ind. 275; Clendenon v. Pancost, 75 Penn. 213; Rees v. Spruance, 45 Ill. 308; Short v. Millard, 68 Ill. 292; Jones v. Adler, 34 Mo. 440; Woods v. Stephens, 46 Mo. 555; Barnard v. Monnot, 6 Am. Law Reg. 209; Coleman’s Ex’rs v. Meade, 5 Cent. Law Jour. 409.
    Appellees were appellant’s brokers; they were not agents: Saladin v. Mitchell, 45 Ill. 79.
   Pleasants, J.

Appellees, who were brokers, recovered a judgment against appellant in assumpsit for two hundred and fifty dollars as their commissions upon an exchange of his property.

The 'contract, as stated in the special count, was that he employed them “ to procure some person ready, able and willing to purchase” certain real estate which he claimed to own and control, upon an agreement to pay them for their services so much as was customary; that is, that he employed them, generally, to procure a sale upon the usual commissions.

The evidence shows that if lie employed them at all, it was only to procure a particular exchange. Casually meeting Ulrich in the street, he told him that having made a certain sale, he was now looking for a good investment; that he wanted to get it in business property, and would put in, together with some money, his farm in Horthfield or a house and lot on Third Avenue, or both; but it is not pretended that any contract "was then entered into. Some days afterwards, upon their written and repeated request, he called at their office, and being 'there shown descriptions of several pieces of property which they had in hand for sale or exchange, he expressed a preference for that of one Matthews, situate on Clark street, and left an offer for it of said farm and the house and lot, subject to an encumbrance of four thousand dollars. Ho other disposition of them was proposed or authorized by him.

Thus his attitude seems to have been that of a purchaser, making an offer to appellees as the brokers of Matthews, rather than of a seller, as represented by the declaration. Nothing was said about commissions, and upon the whole evidence it may well be doubted whether either he or they then understood that he was employing them as his agents. But if he was, it was only to submit to Matthews the specific offer stated and procure its acceptance—a contract which we think substantially variant from the one so alleged.

The declaration, however, contained the common counts also, and upon them the judgment might be supported, if it had been shown that the contract, although different from that-set forth in the special count, had been on the part of appelleesfully performed.

On this subject the undisputed proof is that Matthews refused the offer so made, and in turn proposed to exchange if appellant would remove the incumbrance on his Third Avenue property, which the latter also refused; that several interviews were had between the parties, and the negotiation was continued during a period of some two months, until about Christmas,, when it appeared that neither would make any concession and the effort to effect a trade was abandoned. Appellant notified appellees that he withdrew his offer, and Matthews put his property into the hands of other brokers. Upon this state-of facts appellees could not recover under the common counts. Their undertaking, if any, was to procure an agreement by-Matthews for an exchange upon the terms offered by appellant, or upon some other terms acceptable to him; and having failed to accomplish it, according to all the authorities, they earned no commissions.

But it further appears that a month or six weeks later the parties were again brought together under other influences, and on the 19th of February the trade was consummated upon the terms first proposed by Matthews; and it is contended that appellant’s acceptance, after revocation of the agency, of an offer made during its continuance, subjects him to liability for commissions.

None of the authorities cited are found to hold so broad a proposition, and upon principle we think the question of liability would turn upon the good or bad faith of the previous refusal and revocation.

Beach v. Cresswell, 3 Md. 196, not cited by counsel, is more nearly in point than any other case we have seen. There the plaintiff, having been employed by the trustee of certain property to procure a purchaser at ten thousand dollars, found and reported a party who said he might take it if he could barter bank stock for it. This was done with the knowledge and approval -of the defendant, who was one of the cestuis que trust. Afterwards she purchased the interest of the others and acquired the legal title. Thereupon the plaintiff was. notified of the revocation of his power. She then sold to the party so found, for the price stated, in cash, and plaintiff brought the suit for his commissions; but he disclaimed bad faith on the part of the defendant, and for that reason it was held that he could not recover.

We are inclined to hold that appellant’s acceptance, after revocation of appellee’s authority, of an offer which he had refused before it, is not of itself evidence of bad faith, and if it is, that it is clearly outweighed by the positive testimony of appellant and ■of Matthews that when the negotiation under appellees ended neither of them intended or expected to renew it.

In our opinion, then, the plaintiff failed to make a case under -either of the counts. The judgment of the Circuit Court is therefore reversed and the cause remanded.

Reversed and remanded.


author: Murphy, P. J.

text:
    Harvey B. Hurd v. Sarah Marple.
    1. Guaranty—Extension oe time oe payment.—A contract between the maker and payee of a promissory note, for the extension of the time of payment for a definite period, founded upon a good consideration, releases the surety from liability thereon if done without his knowledge or consent.
    2. Corporations—May not plead usury.—The contract for extension of time was based upon an agreement by the maker, a corporation, to pay interest at the rate of eighteen per cent., and it was contended that this being an usurious contract, and therefore illegal, was not enforceable, and hence did not release the surety. Corporations are prohibited by statute from availing themselves of the defense of usury, and such an agreement is a valid and binding obligation, founded upon a good consideration.
    3. Agency—Ratification.—Where a principal receives and retains the benefits arising from an unauthorized act of his agent, with knowledge of all the facts, he will be held to have ratified such acts, unless he disaffirm them within a reasonable time, and return the money received; and such knowledge will be presumed when it appears that the principal was in possession of facts from which it could have been readily ascertained, or which were sufficient to put him upon inquiry of his agent as to the condition of affairs.
    4. General authority—Principal bound.—Where it appears that the principal had given a general authority to his agent, the acts of such agent, within the scope of his authority, are binding on his principal. Soi where an agent, having money placed in his hands with undisputed power to loan, manage and collect as he should deem best, makes an agreement for extension of time of payment, such act is within the scope of his general authority, and binds the principal.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. H. B. Hurd, fro se,

    insisted that the contract for extension of time was valid and binding upon the company, and cited Rev. Stat. 1877, 590, § 11; American Cent. Ry. Co. v. Miles, 52 Ill. 174.
    Authority to receive money is inferred from possession of the securities: 2 Greenleaf on Ev. 865; Murphy v. Ottarheimer, 81 Ill. 39.
    As to agency and ratification: Wharton on Agency, §§ 85, 89; Horton v. Silliman, 4 N. Y. Weekly Dig. 136; Wilcox & Gibbs S. M. Co. v. Elliott, 6 N. Y. Weekly Dig. 555; Pardridge v. La Pries, 84 Ill. 51; Cochran v. Chitwood, 59 Ill. 53: 1 Black (U. S. Rep.) 539.
    Mr. M. W. Robinson, for appellee.
   Murphy, P. J.

Some time prior to the great fire in Chicago, on the 8th and 9th of October, 1871, the appellee, through her agent, Jirah Cole, loaned to the Highland Park Building Company, a corporation existing under and by virtue' of the laws of this State, $1500.00, for which said corporation executed its promissory note, payable to the appellee, due six months after date with ten per cent, interest. This note, after being extended from time to time, was destroyed by fire at the time of the great conflagration.

On the 1st day of April, 1872, the company gave another note in substitution for the one first given, and so destroyed by fire. This note matured six months after its date, with interest at the rate of ten per cent, per annum after maturity.

This last note the appellant, with others, guaranteed. The company having failed to pay, this suit was instituted in the Superior Court of Cook county upon such guarantee. A trial of which in that court resulted in a verdict and judgment against the appellant for $1549.13, to wrhich he excepted and prayed an appeal to this court.

He brings the record here and asks a reversal of the judgment on several grounds, only a part of which will it be necessary for us to consider.

In the court below the appellant plead non-assumpsit, and eight special pleas, the 2d of which was as follows, to wit: “ That when the note became due, to wit: on the 1st of October, 1872, the plaintiff, in consideration that the said Highland Park Building Company would pay to the plaintiff interest on said promissory note at the rate of eighteen per cent, per annum from the first day of October, 1872, until the 1st day of April, 1873, then and there agreed with the Highland Park Building Company to give, and did then and there give to said company further day of payment of the amount of said note, to wit: until the 1st day of April, 1873, then next ensuing, without the knowledge or consent of said Harvey B. Hurd, by reason whereof he became discharged from all liability on said note.” To this plea a demurrer was interposed and sustained by the court, and excepted to by the appellant.

We are unable to discover any legal defect in the plea, and are therefore at a loss to see on what grounds the demurrer was sustained, unless it was that it amounted only to the general issue. It certainly alleges a contract for the extension of time of payment by the company for a definite period of time, founded upon a valid consideration, to wit: eight per cent, interest more than the note called for. It is not easy to perceive why, if the facts alleged in the plea were proved, it would not be a good defense to the action. The contract by a natural person to pay an interest which would be usurious, and therefore unlawful, might not be a good consideration for such a contract until it was actually paid, for the obvious reason that it would be a promise or undertaking wdiich could not be enforced in law, and therefore void. But it is provided by the statute that such corporations as the Highland Park Building Company cannot avail themselves of the usury laws, and therefore its agreement to pay eighteen or any other per cent, in the absence of fraud is a binding and valid obligation against it. If then the promise of the company to pay the extra eight per cent, interest for the next ensuing six months was a legal and binding promise, it would constitute a good consideration for the agreement to extend the time of payment as specified. Rev. Stat. 1877, 590, section 11; American Cent. R’y Co. v. Miles, 52 Ill. 174.

It is insisted by the appellant that at the end of each six months after the date of this note down to the time suit was brought, the day of payment thereof was extended by the appellant through her agent Cole, in consideration that the maker would pay interest at the rate of eighteen per cent, per annum, and the appellee herself testifies that whatever money Cole received from the maker of the note she received from him, and that even though Cole did not have authority in the first instance to make such contract of extension, still, by receiving and retaining the interest money so paid, she ratified the contract, and made the same binding on her the same as if she had, in the first instance, given him the express authority to make such contract. But it is disclosed by the record that during the time it is alleged the payment of this note was being thus extended, the appellee received from said Cole, her agent, at different times, various sums of money received on this note, a part of which was principal and a part interest, and it is claimed by the appellee that she could not be held to have ratified by way of inference the acts of said Cole in making these alleged agreements, extending the time of payment of said note, unless at the time of receiving the money from Cole she knew it was received from the maker of the note in consideration of such extension, and in excess of the interest called for by the note. We think the law well settled that if the contract of extension were made by Cole as agent, founded upon a valid consideration paid, and that the appellee received the consideration and retainedit with a knowledge of the facts, she thereby adopts and ratifies the acts of the agent, and is bound the same as if she had expressly authorized him to make the contract.

It does not appear that she had actual notice of the fact that Cole, as her agent, had made these alleged contracts and received the money therefor. But she admits that whatever money he? Cole, received from the makers on the note for whatever purpose, she received from him. So that having in her possession the note with the indorsements of interest and principal paid thereon, the appellee, by computation, could readily have ascertained that she had more money than she ought to have according to the terms of the note: a circumstance which we think quite sufficient to have put her on inquiry of .her agent, which would have disclosed the fact of these contracts of extension if they existed. What she would have learned by reasonable inquiry, she in law must be held ‘to know. Tims for the purposes of .this case, she had,notice of the fact, and if she sought to avoid the contract of Cole for want of authority on his part to make the same, she should have returned the money so received and repudiated the act within a reasonable time, which she has not done, but retains the same, if in fact she ever received it. In the light of these views we think the proof offered by the appellant tending to show an extension of the time of payment in consideration of the payment of interest at the rate of eighteen per cent, per annum, should have been permitted to go to the jury, and that it was error to exclude it. Wharton on Agency, Sec. 89; Cochran v. Chitwood, 59 Ill. 53.

But there is another view which we think fatal to the judgment in the court below. It sufficiently appears from the record that the appellee constituted said Cole her general agent to invest this money for her. She held him out as such by placing the money in his possession, and with undisputed power to loan it to whomsoever he might think best, and on such security as he'chose, and on such time as he should deem best. In other-words, manage, loan, control and collect it, principal and interest, without any notice to any one that he did not have all the authority he appeared to have. Under these circumstances he was for the purpose of that particular business her general agent, and within the scope of such authority his acts were binding on his principal, the appellee; and for this reason it was error to exclude the evidence of such contract of extension as above stated. For these reasons the judgment of the court below is reversed and the cause remanded.

Judgment reversed.


author: Pleasants J.

text:
    Joseph Hinterberger v. Sebastian Weindler.
    1. Forcible detainer—Demand in writing must be shown.—In an action for forcible detainer, it is incumbent upon the plaintiff to show a demand in writing for possession of the premises before suit, and failing so to do, he cannot recover.
    2. Promissory note—Delivery—Endorsement.—H. executed notes and a mortgage for $2,000 to M., and left them in the hands of K., a broker, to be delivered on receipt by him of the money. M. failed to furnish the money, and $1,800 was afterwards procured from another source to be loaned, to H. To save the expense of new papers, the difference, $200, was endorsed upon the notes already made for the first proposed loan, as paid, and those-notes duly delivered to the party loaning the money. Held, that M., though named as payee in the notes, was never a holder, they never having been delivered to him; that the apparent indorsement of his name was adopted for the convenience of the parties, and that the person actually loaning the money was the first real holder.
    Error to the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.

      Mr. F. Sackett and Mr. J. A. Phelps, for plaintiff in error;
    upon the question- of agency, cited 1 Parsons on Contracts, 253; 2 Parsons on Notes, 7; Lawrence v. Hibbard, 41 Barb. 575.
    As to the legal title in the notes: Canal Bank v. Bank of Albany, 1 Hill, 287; Edwards on Prom. Notes, 250.
    Upon the question of validity of the sale under the trust deed: 2 Perry on Trusts, 602; Gunnell v. Cockerell, 84 Ill. 319.
    There must have been a delivery of the deeds to make them operative: Dale v. Lincoln, 62 Ill. 22; Hulick v. Scoville, 4 Gilm. 159.
    The transaction amounted only to a mortgage, and plaintiff in error is entitled to time for redemption: Pensonneau v.Pullian, 47 Ill. 58; Klock v. Walter, 70 Ill. 416; Smith v. Doyle, 46 Ill. 451; Ryan v. Dox, 34 N. Y. 307; 1 Jones on Mortgages, § 332.
    Messrs. Coopee & Plotke, for defendant in error;
    as to authority to endorse the notes, cited 1 Parsons on Notes and Bills, 100; 17 Ill. 272.
    Upon the question of delivery of the deeds: Gunnell v. Cockerell, 84 Ill. 319; Walker v. Walker et al. 42 Ill. 311.
    Proof that an instrument was intended as a mortgage should be clear and satisfactory: Price v. Karnes, 59 Ill. 276.
    There was a sufficient demand for possession: Eev. Stat. 533, § 3.
   Pleasants J.

This was a proceeding by the defendant in error against the plaintiff in error for forcible detainer.

It appears that Hinterberger applied to Knauer & Bro., brokers, for a loan of two thousand dollars, and in expectation of receiving it in the course of a few days from Frederick W. Meyer, of Minnesota, for whom they had long been agents, they prepared the necessary papers, consisting of four notes: one for the principal sum at two years, and four for the interest of one hundred dollars each, at six, twelve, eighteen and twenty-four months, respectively, payable to said Meyer or order, and a trust deed to Edmund Knauer, providing in the usual way for the sale of the premises in controversy in case 'of default, upon the application of the legal holder of said notes or of either of them.

These all bore date of Sept. 16, 1872, and were duly signed and left with Knauer & Brother.

Failing to get the money from Meyer, they afterwards induced Hinterberger to accept the sum of eighteen hundred dollars, which they obtained for that purpose from Frank Monninger; and to avoid the expense of new papers reduced the notes already made hy crediting thereon the proper difference, endorsed them in blank, without recourse, in the name of Meyer as his agents,” and delivered them to Monninger. Meyer knew nothing of this, but Edmund Knauer testified that it was done with the full assent of Hiiiterberger given at the time and with full knowledge of the facts, and he is corroborated to- some extent by Monninger, although contradicted by Hinterberger.

All of these notes, excepting the first for interest, remaining unpaid when due, Monninger applied to the trustee to sell the premises under the power contained in his deed, and accordingly on the 20th of January, 1875, having given the proper notice, he struck off and sold them for $2,125, to William Butt. He being unable to raise the money immediately, as was required, on the same day and for the same consideration, deeded them over to Monninger who paid the costs, and then conveyed to the defendant in error for $2,054. It is probable that these several conveyances were made out on the same day and left with Knauer, and that some days afterwards, when Monninger had received all of his money from Weindler, he took them together to the Becorder’s office without actual delivery in person to the grantees respectively. Some attempt was made to show also that the parties concerned agreed on this series of conveyances before the sale was made by the trustee. and that Weindler further agreed to give Hinterberger time for redemption, but both Butt and Weindler deny all participation in, or knowledge of any such arrangement.

Upon this statement of facts the plaintiff in error makes two points.

First: That Monninger was not the legal holder of the notes, for want of authority in Knauer & Bro. as agents to assign them, and that consequently the trustee’s sale upon his appli-cation was unauthorized and void.

Much of argument and authority was addressed to this point by counsel on both sides. It seems to us, however, that the question of agency does not arise, for the reason that Meyer himself, though named as payee, was never a holder. They were never delivered to him, nor to Knauer & Bro. for him, except on condition of his loaning the money. This failing, the apparent endorsement in his name was adopted by the parties for the purpose of making them payable in the first instance to Monninger, who thereby and upon delivery to him became the first real holder, and for aught we see might have maintained his action as such upon an allegation of the facts.

Second: That the deeds to Butt and to Monninger were void for want of delivery. We think it evident that" they were held by Knauer for them, according to the clear intention of all parties concerned, and that was sufficient.

TJpon these points then we find no difficulty in the plaintiff’s case. But there is another not less essential to it, in relation. to which, whatever may have been the proof actually before the court, this record wholly fails to support it; and that is the demand in writing for possession before suit brought.

The bill of exceptions indicates that there was a notice of some sort shown to the witnesses Weindler and Plotlce, and testified of by them, but the record is that it was served on Weindler at the request of Hinterberger. Perhaps these names were inadvertently transposed by the witness, but if that could be assumed the notice itself is not preserved nor otherwise' shown, and we cannot assume that it was what the statute required. It was for the plaintiff to show it, and for his failure to do so, as it appears, though perhaps by a mere oversight, the judgment must be reversed and the cause remanded.

Reversed and remanded.