author: Mr. Justice Freeman

text:
    Henry D. Laughlin v. Paul Brauer, Administrator.
    Gen. No. 12,614.
    1. Husband and wiee—right of one to prefer the other. The husband may in good faith lawfully prefer his wife, and discharge any legal subsisting bona fide obligation to her, even if he thereby devotes to the payment of her demands the only property to which other creditors may resort for payment of their claims.
    2. Jurisdiction—what does not oust court of equity. Equity is not ousted of jurisdiction to grant relief with regard to a matter for which a remedy may exist at law, merely because it has found on the evidence against the allegations of the bill with respect to a matter of purely equitable cognizance.
    3. Master in chancery—when reference to, discretionary. It is within the discretion of the chancellor to refer or to refuse to refer to a master a proceeding in accounting, where the matter of stating the account is not complicated.
    4. Evidence—tohen booh entries competent. Held, that certain book entries shown in this case were competent as showing the course and manner of the transactions involved.
    5. Evidence—when with respect to checks competent. Held, that where the original checks have been destroyed, it is competent to permit a witness to testify with respect thereto, using for purposes of refreshment of memory, thé stubs of such checks.

      Bill for specific performance, etc. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.

      Heard in the Branch Appellate Court at the October term, 1905.
    Affirmed.
    Opinion filed January 28, 1908.
    Statement by the Court. Appellee’s intestate, Mrs. Sarah Eden, in her lifetime filed a bill of complaint in the Circuit Court April 22, 1901, against appellee Laughlin and others, and. from a decree in her favor this appeal is prosecuted.
    The bill alleges, among other things, the formation, January 20,1890, of a corporation known as the Northern Hotel Company, with a capital of $700,000 represented by 7,000 shares of $100 each; that said corporation constructed the Great Northern Hotel in Chicago, which it completed and opened June 15, 1892; that thereupon it executed to William S. Eden, husband of complainant, a lease of said hotel building for twenty years; that the building was maintained and operated as a hotel by said lessee until about December, 1899; that said lessees furnished and equipped the hotel with furniture and appliances of the value of about $400,-000; that about December 19, 1899, complainant became owner of about 400 shares of said Northern Hotel Company’s stock, and that for a number of years she was owner of 532 shares of said stock, which was held in the name of said William S. Eden, her husband.
    It is further alleged that on or about December, 1899, the defendant Laughlin proposed to said William S. Eden that they purchase a controlling interest or majority of the stock of said Northern Hotel Company ; that thereupon complainant was induced by said Laughlin, who pretended he would advance $150,000 to enable her so to do, to purchase outstanding stock which was then selling at from thirty-five to fifty-five per cent, of the face value, and that she did, with the assistance of said Laughlin, purchase about 4,000 shares of said stock, in addition to what complainant then owned, which stock so purchased was taken in the name of said Laughlin, but nevertheless in trust for complainant as to one-half thereof; that instead of advancing and paying out $150,000 in buying such controlling interest, said Langhlin paid not to exceed one- - half of that amount; that complainant and her said husband assigned to Laughlin the certificates of stock held by them, under a verbal agreement in substance as follows:
    Complainant agreed to cause to be transferred to said Laughlin the stock so held by herself and her husband; that she would cause the lease of the hotel held by her husband and others to be remised to the Northern Hotel Company, that she would cause all the furnishings and equipment of the hotel to be transferred to said Northern Hotel Company, and that she would furnish such sums of money as she was able toward the purchase of a controlling interest in the said Northern Hotel Company; that on the other hand Laughlin agreed that he would honorably hold the stock so transferred to him by complainant and her husband in trust for complainant, that he would furnish $150,000 to be used in the purchase of a controlling interest in said Northern Hotel Company, that the stock so purchased should be placed on the books of the company in the name of said Laughlin, that the stock so caused to be transferred to Laughlin by complainant and her husband, together with that purchased, were to be owned and shared by complainant and Laughlin, share and share alike; that it was further agreed that Laughlin should be elected president of the Northern Hotel Company when such control of the corporation had been secured, and that complainant’s husband, William S. Eden, as representative of complainant, should be elected vice-president and managing director, the salaries of Laughlin and Eden to be ,the same in amount.
    It is further alleged that in conformity with said verbal agreement, complainant caused her stock to be transferred to Laughlin, the lease to be remised to the Northern Hotel Company, the furniture and equipment of the hotel to be transferred to the corporation, and that she advanced to said Laughlin in and about tlie purchase of stock the sum of $30,000 until about 4,000 additional shares had been so purchased by complainant and Laughlin, which were transferred to his name upon the books of the Northern Hotel Company; that Laughlin and Eden were on May 1, 1900, elected president and vice-president respectively of the company, each with a salary of $12,000, together with apartments in the hotel and living expenses without charge.
    It is alleged that under the management of Eden the hotel greatly prospered, debts were paid off and the value of the stock greatly increased, but that Laughlin, who was without hotel experience, so interfered with the management of the hotel that the profits were diminished, and that on April 3, 1901, without complainant’s consent, said Laughlin ousted complainant’s said husband, William S. Eden, from his position as manager of said hotel and that he is now conducting the hotel himself through an employe, who is likewise inexperienced and in such manner as to impair complainant’s property interest in said hotel; that he neglects and refuses to consult complainant or her representative, that he has negotiated and made sales of the stock held by him in trust, is borrowing money on such stock and using the proceeds for his private purposes, refusing to account therefor to complainant, that he has made an agreement to lease the hotel, having no authority so to do; that he pretends to be sole owner of all the shares standing in his name and that complainant has no interest therein.
    The bill prays for specific performance of the alleged verbal agreement, that Laughlin be decreed to account to complainant for her share of the stock held by him in trust for her under said agreement, to transfer to complainant her share of said stock and in all other respects perform; that the said defendants be restrained from leasing or encumbering the hotel property and enjoined from voting the stock, and from interfering with complainant’s right of possession of certain rooms occupied by herself and husband. There is a prayer for such other and further relief as equity may require or as to the court may seem meet.
    Defendant Laughlin answered, denying material allegations of the bill and setting out his version of the facts as to the leases of the hotel to Eden and others. Material allegations of the answer are in substance that in November, 1899, said Eden urged defendant to buy a controlling interest in the stock of the hotel company as a good investment and to make Eden manager of the hotel; that he told Eden eventually that upon: certain conditions not now material to the controversy he would buy a majority of said stock if it could be obtained at prices not exceeding what defendant- thought it worth; that subsequently, rather than have defendant put in an assistant manager who would loan defendant money to complete his purchase of said stock, Eden agreed to procure a loan to the extent of $30,000 for defendant from certain of Eden’s friends, to be used by defendant in making the purchase of said stock. Defendant states that Eden did procure from certain of his friends, who, as defendant is informed and believes, were F. W. Bipper, since deceased, Owen H. Fay, J. H. Dimery and Fred IT. Smith, a loan to defendant, “the amount of which defendant is unable to state, for the reason that the checks for said sums were to be vouchers to the said persons loaning the said money,” which defendant has been unable to obtain, “and, so far as,this defendant knows, the said sums are still due to said persons so loaning the money.” Defendant denies, however, on information and belief, that such loans have been returned or paid by complainant. He states that with his own money and the money so borrowed he purchased shares of stock sufficient, with the stock held by complainant and her husband, for his purpose, and that in February, 1900, he bought from Eden said last mentioned stock and paid for it. Defendant denies that any stock was purchased by him in trust for complainant, and states that he purchased a large number of shares on his own account and for his own purposes. Defendant further answers, alleging that May 31,1900, a lease of the hotel to said Eden and one Hullbut was forfeited for non-payment of the rent, then largely in arrears; that defendant caused Eden to be discharged, as he alleges, for incompetency. He denies that complainant is entitled to relief as prayed for and denies that she has any claim to or interest in or to the capital stock of the Northern Hotel Company.
    An intervening petition was filed by the Chicago Title & Trust Company setting up its appointment as trustee in bankruptcy of William S. Eden by the District Court of the United States for the Northern District of Ulinois, and praying that whatever sum of money may be found due from defendant Laughlin to complainant, Sarah Eden, may be found due to her as trustee for said bankrupt and payable to the intervening petitioner.
    Upon the hearing after a very considerable amount of evidence was introduced, leave was granted complainant to amend her bill instanter, which was done. The amendment changes the first paragraph of the prayer of the bill and asks that defendant Laughlin be required to account to complainant for the stock sold by him and the proceeds thereof, and “also for the moneys advanced by your oratrix for the purchase of stock as aforesaid.”
    June 4, 1904, the Circuit Court entered an interlocutory decree finding that defendant and complainant did not enter into an oral contract such as is set out in the complainant’s bill, that Laughlin did not agree to assign to complainant one-half of whatever stock of the Northern Hotel Company he might purchase, that defendant is the owner of the stock so purchased by him and that complainant had and has no partnership nor other interest therein. The court further found, however, that defendant Laughlin is “indebted to complainant Sarah Eden in certain sums of money, the aggregate amount of which is to be hereafter ascertained,” and that said indebtedness arose by virtue of the following circumstances: Said complainant,
    Sarah Eden, was the owner of all the shares of a certain corporation known as the Great Northern Baths, except two shares which were issued to other persons to qualify them to act as directors. Said corporation made considerable earnings, as the result of which dividends were declared, but instead of turning over to the said Sarah Eden in cash the amounts to which she was entitled as dividends, the said corporation executed to the said Sarah Eden its notes, and the money which was due to her from this source was left within the control and dominion of her husband, William S. Eden. Under these circumstances, said William S. Eden made a series of loans of such money to the defendant, Henry D. Laughlin, for the purpose of assisting the said Laughlin to buy stock in the Northern Hotel Company. Said Laughlin was informed that the money which was being loaned to him was the money of the said Sarah Eden and accepted it as such, and the said Sarah Eden was informed that her said money had been loaned to said Laughlin and she acquiesced in and ratified said transactions so that the relation of debtor and creditor was established between said Henry D. Laughlin and said Sarah Eden.
    The court thereupon directed an accounting to ascertain the amount owing by defendant Laughlin ,to complainant. . Defendant moved to refer the cause to a master in chancery to state the account. The motion was denied and it was ordered that the matter of said accounting be set for hearing before the court.
    Subsequently, December 21, 1904, a supplementary interlocutory decree was entered substantially like the former decree, but finding in addition that the intervening petitioner, the Chicago Title and Trust Company, trustee in bankruptcy of W. S. Eden, has no interest in the amount due from Laughlin on the loans made to him through complainant’s husband, and said intervening petitioner is dismissed out of the case. It was ordered therefore that complainant recover of Henry D. Laughlin whatever sum may be found due and owing by him on account of said loans so made to him out of the funds of the complainant in and about the purchase of stock in the Northern Hotel Company to be ascertained from the evidence heard and such other evidence as might be necessary to ascertain the exact amount. No further evidence was, however, introduced, and January 27, 1905, the court entered a further decree upon the evidence before it, in and by which decree each separate item of money advanced to defendant Laughlin by or in behalf of complainant and found due the latter from said defendant Laughlin is stated in manner as follows:
    “1. That on or about December 12, 1899, the said defendant received from T. W. Wilmarth Co., through W. S. Eden, the sum of four hundred and seventy-five ($475) dollars, which said sum was on or about December 12,1899, repaid to said T. W. Wilmarth Co., by the Great Northern Hotel Company, and by it charged to the Great Northern Baths, on account, which in turn on the same date charged said amount to the account of Sarah Eden, as a credit upon its certain notes held by said Sarah Eden, as heretofore found, and that said complainant Sarah Eden is entitled to recover of the said defendant, Henry D. Laughlin, the said sum of four hundred and seventy-five ($475) dollars, together with interest thereon at the rate of 5 per cent, per annum from December 12, 1899, to January 20, 1905, amounting to one hundred and twenty-one ($121.37) dollars and thirty-seven cents, making a total amount of five hundred and ninety-six ($596.37) dollars and thirty-seven cents.”
    In substantially the same way the account is stated as to the remaining thirty-five items found to have been received by defendant and due from him to complainant. These items, with interest, aggregate $31,-905.09. The court therefore finds from the evidence that the defendant, Henry D. Laughlin, is indebted to the complainant, Sarah Eden, in that sum.

      Upon the ninth of March, 1905, a final decree was entered finding that the original complainant “Sarah Eden departed this life February 15, 1905,” and that Paul Brauer had been duly appointed and had qualified as administrator of her estate. He was thereupon substituted as complainant. Said final decree refers to the former orders entered, which it ratifies and confirms, dismisses for want of equity the intervening petition of the trustee in bankruptcy and orders that complainant recover of defendant, Henry D. Laughlin, the said sum of $31,905.09, with interest thereon at the rate of five per centum per annum from January 20, 1905. From this decree the defendant Laughlin appeals.
    Shops, Mathis, Zane & Weber, for appellant.
    Longenecker & Longenecker and William J. Candlish, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

The record in this case is voluminous and numerous errors are assigned. Much evidence was taken upon the alleged verbal agreement between the complainant, Sarah Eden, and the defendant, Laughlin, by virtue of which said complainant claimed a half interest in stock of the Northern Hotel Company held in the name of said defendant. The Circuit Court having found that the evidence failed to establish the existence of such an agreement and that Laughlin is the owner of the stock in question, and appellee having assigned no cross errors, it is not necessary to review that phase of the case.

It is, however, upon evidence introduced on the one side in support of the contention that Laughlin purchased that stock—in part with money advanced by her—for the benefit of himself and complainant and holds half of it in trust for her, and upon the other. in contradiction of complainant’s said contention, that the final decree was entered from which this appeal is prosecuted. It is not, however, necessary to review this mass of evidence in detail. Appellant Langhlin admits in his answer to the bill that he owes someone for money which he concedes was advanced to him at the instance of William S. Eden, husband of complainant, for the purchase of the stock of the Northern Hotel Company in question,. He is unable, however, he says, to state the amount of his indebtedness on that account, nor does he know to whom it is payable, althoug’h nearly three years had elapsed since he received the money.

(1) The decree appealed from finds appellant indebted to appellee to the extent of $31,905.09, with interest from January 20, 1905. The circumstances under which this obligation is claimed to have arisen appear, so far as material, to be substantially as follows : Having concluded to try to buy up enough stock of the Northern Hotel Company to control that corporation, appellant Langhlin found it necessary to obtain more money than he had available at the time. His relations with W. S. Eden, complainant’s husband, and with complainant were then apparently amicable, and Eden undertook to assist him in securing control of that company. Appellant’s version of the circumstances tends to show that this aid was obtained from the Edens through some pressure which appellant brought to bear, and there is evidence in behalf of appellee tending to show that there were other reasons, which it is not now necessary to consider. Eden at the time was manager of the Great Northern Hotel under a lease from the owner, the Northern Hotel Company. He had been manager of the hotel for more than five years when, according to appellant’s statement, in November or December, 1899, appellant concluded to buy up the controlling interest in the stock of said Northern Hotel Company. This company, which owned the hotel, is to be distinguished from the Great Northern Hotel Company, which operated the hotel and which was organized by W. S. Eden, who owned its capital stock. This latter corporation had been the instrumentality through or by means of which Eden operated the hotel from early in 1896. There was also a third corporation, the Great Northern Baths, which had been organized more than two years before, the capital stock of which was held by the complainant, Sarah Eden. Whatever the reasons may have been, Eden apparently undertook to procure through some of his personal friends money to be advanced to appellant. The sum desired by appellant was $30,000. The latter states upon information and belief that these friends of Eden were F. W. Bipper, Owen H. Fay, J. H. Dimery and Fred H. Smith. The money, or much of it, was paid to appellant from time to time on checks drawn by these parties.

The same bookkeeper kept the books of all three of the above mentioned corporations. Her testimony tends to show that there were transactions noted on the books of the Q-reat Northern Hotel Company with persons named Bipper, Fay, Wilmarth, Friedman, Keiler & Co., and perhaps other parties in the like series of transactions. Some of these are the parties above referred to mentioned by appellant Laughlin in his answer. Appellant received money on their checks, but the amounts were promptly repaid to them. In other words, those checks were merely accommodation checks given Eden and which he turned over to appellant, giving back to the accommodation drawers checks of the Qreat Northern Hotel Company drawn for the same sums. In some cases Eden gave his own notes for the amounts represented by the accommodation checks, which notes were subsequently paid by the Qreat Northern Hotel Company. The amounts so paid by the latter company were charged by it against the Qreat Northern Baths, and by the latter in turn charged against the complainant, Sarah Eden. The apparent reason for this circuitous procedure seems to have been in part and primarily to enable appellant Laughlin to conceal from certain parties interested the fact that he was receiving money out of funds in the hands of the Great Northern Hotel Company which he was using to buy up stock of the Northern Hotel Company. The result of these transactions and entries was that the money thus advanced to appellant was eventually paid to Mm out of money derived from the earnings of the Great Northern Baths.

The Great Northern Baths was a corporation which had been organized in March, 1897, more, than two years before these advances were made to appellant. W. S. Eden had at that time a lease of the ground upon which said “Baths” was erected. He organized the corporation with a capital stock of $50,000, all but two shares of which were issued to complainant, Sarah Eden, in her own name. The said stock was fully paid by the conveyance to the corporation of the “Baths,” wMch had been erected by W. S. Eden for his wife, the complainant. Eden testifies that in this way he repaid to his wife considerable sums of money which he then owed her; that he had at that time over $30,000 of her money in his business which she had lent to Mm, and that he raised additional sums from the sale of life insurance, real estate and in other ways. He testifies that Mrs. Eden was his assistant in the hotel business, that she “worked harder than I did” and gave him “money right along”; that she was “earning money right along and was a money saver,” and that “probably she has given me forty or fifty thousand dollars, all told.” Complainant herself testifies that all her money went into the Baths, that she owned that establishment and that no one else ever owned it. Her husband also says “it was Mrs. Eden’s money and we owed her the money and I wanted to pay her and I had to get the money for Laughlin in some way. The Great Northern Hotel owed her money. Mrs. Eden was the Great Northern Baths and nobody else. She owned everything that was there.” Mrs. Eden had the care of the baths and saw to everything that was needed in their management. She testifies—and her evidence in this respect is corroborated by other evidence and is not contradicted—that the money which came in daily from the Great Northern Baths was pnt into the Great Northern Hotel, that she never had any of it, bnt kept letting her husband, who was running the hotel, have money. Eden testifies that “at that day I was not owing any money to anybody and I had a perfect right to give my wife that Baths. ’ ’

(2) It is urged in behalf of appellant Laughlin that the Baths were paid for by Eden out of money belonging to the Great Northern Hotel Company, the operating company controlled by Eden. The contention is that at that time Eden and the Great Northern Hotel Company were indebted to the Northern Hotel Company for rent; that the Great Northern Baths belonged to the Great Northern Hotel Company, and that the money of the latter could not be appropriated and given to Mrs. Eden, to the prejudice, it is said, of the Northern Hotel Company, its heaviest creditor; that even if the property was Eden’s and did not belong to the Great Northern Hotel Company, he could not give away his property, to the prejudice of his creditors. The alleged creditor, Northern Hotel Company, however, has never complained and is not here complaining now, assuming that it could be heard to do so after years of acquiescence with full knowledge of title and possession in complainant, Sarah Eden. It has never claimed to have—and, so far as appears, never had—any interest in the money which erected the baths, except that it is now claimed there was money due it for rent from the Great Northern Hotel Company. But it appears from the evidence that the latter owed Mrs. Eden also large sums of money which it was at least equally bound to pay, and it is rather late in the day now to set up an unasserted claim of another as a reason why appellant should not pay his own debt. As above stated, there is evidence amply sufficient tending to show that the earnings of the “Baths” were daily turned over to 'the Great Northern Hotel Company and used in its business. These earnings were considerable. The “Baths” was making money. In April, 1898, that corporation declared a dividend of twenty-five per cent.; the next year a dividend of at least eighteen per cent.—according to some of the testimony, twenty-five per cent. The year following there was a dividend declared of seven per cent.—according to another witness, twenty per cent. As the earnings of the “Baths” had all this time been turned over to the Great Northern Hotel Company, the “Baths” had no money on hand to pay these dividends, Mrs. Eden’s share of which, at the lowest of the estimates, aggregated at least $24,900. Instead of cash, she was given notes of the “Baths” for the amount thus due her as dividends. Appellant’s counsel objected to the testimony tending to show that such notes were given, on the ground that the notes themselves were the only competent evidence. It was shown they had been left at complainant’s home in another state, and we are of opinion it was not improper, under the circumstances, to admit evidence tending to show that such notes had been given complainant for the amounts due her as dividends. In any event, such evidence was only cumulative, there being other evidence not contradicted tending to show that such dividends were due Mrs. Eden.

(3) We conclude from the evidence, first, that Mrs. Eden owned the stock of the Great Northern Baths under a title ante-dating the transactions in controversy between appellant and Mrs. Eden, the complainant, as to which what is said in Earl v. Earl, 186 Fitzgerald. 370-374, is in point: “The husband may in good faith lawfully prefer the wife and discharge any legally subsisting tona fide indebtedness to her, even if he thereby devotes to the payment of her demands the only property to which other creditors may resort for payment of their claims.” See, also, Dean v. Plane, 195 Ill. 495-500-1. We discover no equity in whatever claim, if any, the Northern Hotel Company had for rent at the time of the erection of the “Baths,” which is in any way superior to the equity of complainánt for money due her at that time. Second, the Great Northern Hotel Company was at the time of the advances in controversy to appellant Laughlin, indebted to complainant in a large sum of money, apparently exceeding the amount found due by the decree appealed from. Third, the Great Northern Hotel Company paid to Bipper, Fay, Smith, Dimery and others the sums received by appellant Laughlin on their checks respectively, and charged the amounts so paid, to the Great Northern Baths. Fourth, the amounts so charged were by the Baths charged to Mrs. Eden, the complainant, who thus became the actual lender of the money in controversy and entitled to recover it from appellant Laughlin. Fifth, there is evidence tending to show that appellant Laughlin was informed how the entries and charges as to this money so advanced to him were being made at the time, and knew that the money was in fact received by him from complainant Sarah Eden. This he denies. The chancellor, however, evidently gave credence to the testimony of Mr. and Mrs. Eden and of Mrs. Sullivan, the bookkeeper, instead of to appellant’s contradictory testimony, and in this we find no error.

(4) Appellant urges that “When the court had found that no contract as to the purchase of the stock had ever been entered into, and had found that the sole cause of action of complainant against defendant was merely for money loaned, it was the duty of the court to have dismissed the bill, because (1) the court had no jurisdiction in equity to adjudicate a cause of action purely legal, and (2) the recovery would be based upon a cause of action wholly antagonistic to the cause of action alleged and the relief prayed in the bill.” We do not concur in these contentions. The bill alleges that the stock bought up by Laughlin was “purchased by money furnished by the said Henry D. Laughlin and complainant until about four thousand (4,000) shares of stock in addition to what complainant then and there owned” was so purchased. The bill as amended prays that Laughlin may be decreed to account for stock sold by him and its proceeds “and also for the stock remaining in his hands, and also for the moneys advanced by your oratrix for the purchase of stock as aforesaid.” The bill in effect charges, and there is evidence tending to show, the stock in question was purchased in part with money furnished by complainant for that purpose, the amount of which could only be determined by an accounting. "While the court found that Laughlin was not liable to account to complainant for a half interest in the stock itself by virtue of the alleged verbal agreement, he was liable to account to her for money used in its acquisition. The bill charged that complainant had not only furnished money, but had caused the surrender of a lease and the conveyance of the hotel furniture to be made to the corporation, thereby increasing the value of the stock which she helped Laughlin to buy. Her money having gone into its purchase, might very well create a trust in the stock, or some of it, for her benefit by operation of law. "While it may be that complainant proved no definite agreement entitling her to the ownership of half the stock, and creating an express trust in her behalf, it appears, we think, from the bill and from the evidence that the adverse finding in that regard did not remove from the bill all grounds for equitable relief. At all events, the court had jurisdiction of the subject-matter and the parties. It would be but a lame and impotent conclusion if, after hearing so much evidence upon a conceded matter of equity jurisdiction, the court should shut its eyes and refuse to grant such relief as the evidence showed complainant to be entitled to, merely because some relief might have been had at law. It would be neither just' nor equitable in any sense to put complainant to the delay and additional expense of presenting over'again in a court of law the voluminous evidence already before the chancellor. In Braithwaite v. Henneberry, 222 Ill. 50-53, it is said: “It is the rule that when a court of equity acquires jurisdiction over a cause requiring any equitable relief, the court may retain the cause for all purposes and establish legal rights and provide legal remedies which would otherwise be beyond the scope of its authority. In such case the Court will not ordinarily limit itself to the execution of partial justice and turn the parties over to a court of law, but will go on and dispose of all the matter at issue so as to do adequate and complete justice between all the parties. Whether the court will so proceed is a matter for the exercise of sound discretion which is subject to review, and which will ordinarily be exercised by retaining the cause and granting any necessary legal remedies.” It is further said in that case that “there was a general prayer for relief and if a bill contains averments of specific facts which authorize the granting of certain relief it may be granted under a general prayer.” Defendant in his answer admitted that he owed someone for money so advanced to him for the purchase of the stock, but denied that it was due to complainant. The tracing of the money to its source involved an investigation of transactions conceded to have been purposely obscured at the instance of appellant and for his benefit. It would have been an abuse of judicial discretion in this case to dismiss the bill and relegate the parties to a court of law. It is "said in Smith v. Bates Machine Co., 79 Ill. App. 519-526: “Appellee may have a remedy at law, but in the nature of things it could not have been as full, adequate and complete as in a court of equity. The jurisdiction in equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would afford under the same circumstances.” Gormley v. Clark, 134 U. S. 338; Kilbourne v. Sunderland, 130 ib. 505; Idem, 182 Ill. 166-169. See, also, Morris v. Thomas, 17 Ill. 112-114-115; Tunesma v. Schuttler, 114 Ill. 156-163, 164; Grand Tower v. Walton, 150 Ill. 428-436; Gage v. Parker, 103 Ill. 528-534. We are of opinion the chancellor properly retained the bill and allowed the amendment to the prayer.

(5) It is insisted by counsel for appellee that the court erred in refusing’ to refer the cause to a master upon the motion of defendant’s counsel, and that it was error to decree an account upon the evidence already before the court without such reference. As we have stated, no new evidence was produced by either party upon statement of the account. An interlocutory decree had been previously entered. No reason is suggested by appellant’s counsel in their brief why the court might not properly state the account upon the evidence before it, rather than send the parties to a master to take the evidence over again. It is true that statement of complicated accounts upon contradictory evidence is ordinarily the work of a master, whose duty it is to “render a concise and accurate statement so that the same may be readily comprehended and any objection taken passed upon understandingly. ” Moshier v. Norton, 83 Ill. 519-525. Where evidence is so conflicting and unsatisfactory as to make such course advisable, a reviewing court will send the cause back to be “referred to a master to take and state the accounts between the parties and to ascertain accurately the amount due”; and such “is the well recognized and established practice in all eases of a complicated character.” Bressler v. McCune, 56 Ill. 475-482. The case at bar is not, however, of such a character as to make such reference absolutely necessary. There were no mutual accounts, nor counter-claims against complainant. It was purely discretionary with the court whether so to refer it or not. Schulz v. Schulz, 138 Ill. 665-668. In Land Co. v. Peck, 112 Ill. 408-436, it was objected that the cause was not referred to a master to report the amounts due. The court said, “There are no complicated accounts here as in cases where we have required there should he a reference to a master. As soon as the rights of the parties were settled, determining the amount due any of the parties in whose favor decrees were entered was but a matter of the computation of interest on fixed amounts, and finding the sum of the principal and interest.” No two cases are precisely alike, and the case at bar differs materially from cases cited by appellant’s counsel, such as French v. Gibbs, 105 Ill. 523-528; Beale v. Beale, 116 Ill. 292; Moffett v. Hanner, 154 Bl. 649-655.

It is contended in behalf of appellant that numerous errors occurred in the admission of evidence in that the entries upon the cash book and ledger of the Great Northern Hotel Company were incompetent as evidence against the defendant. A distinction is sought to be made between these entries. The first items objected to refer to transactions with Bipper, Smith, Fay, Wilmarth and Friedman, Keiler & Co., parties from whom William S. Eden received accommodation checks which were turned over to defendant Laughlin. The Great Northern Hotel Company thereupon gave its checks for the same amounts to these parties respectively, or else gave Eden’s note, which it afterward paid. The hotel company then charged to the Great Northern Baths the checks so given to the accommodators. It is said these were not entries in the ordinary course of business of the hotel company and did not show transactions where, upon the face of the accounts, money appeared to pass to the defendant, and that such book entries are not admissible against the defendant in any event. That defendant received the money represented by these entries, does not depend for proof, however, upon the evidence of the entries alone. It is stated in appellant’s brief that “it is apparent the fact was, that it was desired to show by the books that payments were being made to the Baths as cash payments and that money was not being taken out of the hotel company for investment in stock of the Northern Hotel Company.” The materiality of the entries is not alone dependent upon their representing actual transactions in due course of business, although it is by no means apparent that they do not, but in part upon their having been made in this manner with the knowledge of defendant as the preponderating evidence, we think, must be deemed to show, and for- the purpose of enabling him to conceal the manner in which he was procuring money to buy the stock and the source from which it was derived. The testimony of the bookkeeper is to the effect that the entries were still further obscured, as in the Bipper case, in that in some cases no single sum shown by the entries corresponds with any of the amounts received by defendant on Bipper ?s checks, because these amounts were split up, and checks were given for different amounts, corresponding in the aggregate, however, and returning the money advanced by Bipper. In Cooke v. The People, 231 Ill. 16-17, it was held that books of the bank, when taken in connection with the deposit slips and the testimony of witnesses, were admissible in evidence as against the defendant in that case, for the purpose of showing that money deposited in said bank was credited to the individual account of the defendant. In the same way we are of opinion that the entries in question were admissible as tending to show that the money paid to defendant, some of which he admits he received and some of which he says he does not know whether he received or not, was in fact charged to and paid out of money of complainant, and that the entries in question related to the money advanced to defendant for the purchase of stock. The book entries were certainly admissible to show how the account of these advances was kept in the books. They may be excluded from consideration as evidence of the loans themselves. There is other evidence as to these, direct testimony not contradicted, and much of it not even disputed. The entries upon the books of the Great Northern Baths were introduced also to show that these sums of money were in fact charged eventually to complainant. The bookkeeper testifies that many of the entries in question were made not “upon information furnished me by anybody,” but that she “got the information from the check I would draw to these particular people that are enumerated there, or from the money I would give to that particular person.”

It is further claimed that it was error to admit evidence of what is called constructive notice to the Northern Hotel Company of the fact that Eden had in October, 1897, transferred 498 shares of the Baths stock to Mrs. Eden, the complainant. In view of the fact that the Northern Hotel Company is not complaining, that the transfer of the “Baths” property has never been brought into question, and is not now questioned by anyone showing a right to make objection, we deem it immaterial whether such evidence of notice was properly introduced or not. If we assume that there was any error in its admission, it is not error of which appellant can now complain. Nor do we find error in the admission of evidence of the party who filled out certain checks and testified thereto, the checks themselves having been destroyed, and the witness referring to the stubs of the checks to refresh her memory. Objection is made as to certain items which it is said cannot be charged against appellant because it is said the amounts did not go directly to appellant. If, however, they were paid for him direct to parties from whom he was purchasing stock which he received, as there is evidence tending to show, we fail to perceive why they should not be charged to him in the same way as though the money itself actually passed through his hands.

It is conceded by appellant that he received $19,000. The balance of the account as stated he disputes. We cannot, in the limits proper for this discussion, follow in detail the items thus disputed. It must suffice to say that a laborious consideration fails to' convince us .that material error exists in the conclusion stated in the decree. One of these alleged errors relates to “a check of $2,000 from Smith,” which, it is said, “was not delivered to Laughlin.” So far as we can discover, there is nothing in the evidence tending to show that it was not properly chargeable to appellant and used for his benefit. We have carefully examined the separate items claimed by appellant’s counsel to be erroneously charged against him and the evidence relating thereto. We find no sufficient reason to interfere with the conclusion reached by the chancellor and the findings of the decree.

“Finally,” say appellant’s counsel, “we contend on broad principles of justice * * * that the evidence ■ shows beyond question that Mrs. Eden had no interest in these moneys loaned to Laughlin.” That question we have considered and our conclusions above stated are adverse to appellant’s contentions. Upon what principle of justice appellant can claim to be entitled to the money himself, $19,000 of which he concedes is not his, but which he has retained for years, has not been pointed out to us, and we have not been able to discover.

For reasons indicated the decree of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    City of Chicago v. Union Trust Company.
    Gen. No. 13,580.
    1. Local improvements—when city chargeable with interest upon vouchers. If a city is liable for the principal due for the construction of a local improvement, it is chargeable with interest: (1) upon funds illegally diverted, (2) upon the amount paid for delinquent property purchased by it, and (3) upon the amount assessed as public benefits.

      2. Local improvements—what chargeable to particular instalment. Each instalment is properly chargeable only with its own expenses.
    3. Local improvements—what proof essential to show propriety of charges made against particular instalment. In order to charge an instalment of an assessment with expenses made in connection therewith, it is essential that the city show the facts from which the propriety of such charges may be determined.
    4. Local improvements—effect where city purchases delinquent property. Where a city, in default of other bidders, purchases property delinquent as to a special assessment, it becomes chargeable with the amount bid for such property, together with interest thereon.
    5. Local improvements—propriety of appropriation by city to pay for purchases at tax sales. Where a city, in default of other bidders, purchases property delinquent for a special assessment, it is proper that it appropriate an amount sufficient to cover the bid made by it, together with interest upon such amount.
    6. Mandamus—when remedy by,- need not be invoked. A remedy by mandamus need not be invoked to compel the city to pay to a contractor the amount which it has bid for property delinquent for a special assessment, it appearing that the city has appropriated money to pay such bid.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Theodore BRentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 28, 1908.
    Statement by the Court. This is an appeal from a decree of the Superior Court. Appellee filed its bill of complaint seeking to compel the city of Chicago, appellant, to pay balances claimed to be due upon vouchers issued in certain special assessment proceedings. The vouchers are set forth in the bill and all are in form substantially like that described as follows :
    “Special Assessment Vouchers Warrant No. 17,352, Estimate No. 1, and Final of Installment No. 5, dated Chicago, September 14, 1893, in which it is stated that from the collection of the fifth installment of the special assessment above mentioned, made by the City of Chicago, and as confirmed by the County Court of Cook County, Illinois, on the 21st day of February, A. D. 1893, for the purpose of improving Lawndale avenue from Ogden avenue to West Twelfth street, in said city, but out of no other assessment or fund, on the 1st day of October, 1897, or when, and as so collected, and in the city treasury, the City of Chicago, will pay to Barber Asphalt Paving Company, or order. the sum of Ten Thousand Two Hundred and Fifty-nine and Fifty-four Hundredths Dollars, being the fifth installment of the contract price of said Barber Asphalt Paving Company for said work, with interest thereon at the rate of six per centum per annum, from the 14th day of September, 1893, and annually thereafter, or when and as thereafter collected and in the city treasury, or so much of said principal sum and such interest as shall be so collected by said city upon said installment and interest thereon.”
    The bill alleges, among other things, that said vouchers had been duly assigned to complainant, that they have been presented to the city for payment which has been refused, that the city has refused to pay the amounts represented by these vouchers or take any steps to have them paid; that the special assessments made for the various improvements to which the vouchers relate amounted in each case to a sum sufficient to pay for such improvements and to pay the vouchers in question in full; that the city has collected on such special assessments money sufficient to pay the said vouchers; that the city is indebted to said special assessment funds respectively for-public benefits assessed against the city which it is the latter’s duty to pay; that the city has illegally charged sundry items against the funds collected for said assessments and pretends there is no money in its possession to the credit of said assessment accounts; that if the city' should state said accounts fairly and justly, it would appear there were large amounts of money to the credit of each of said accounts which should be paid complainant on account of such vouchers; that if the city should credit said special assessment accounts with amounts owing thereto by the city, there would be sufficient money to the credit of such accounts to pay the vouchers in full; that it is the duty of the city to collect said assessments and complainant is informed and believes that in some instances, through negligence of the city, some money due on such assessments has been allowed to remain unpaid; that the city has charged in said accounts sundry items as expenses of said assessments, which were not paid by the city and not used for any legitimate expense of the improvements ; that it has charged in the several special assessment accounts sundry items for rebates, inspection, engineering and costs which are largely in excess of just and lawful charges for such items; that items of debt in such accounts which are not chargeable to said special assessments are credited in other accounts of said city in such manner that portions of such special assessment funds which should be paid to complainant stand to the credit of other accounts of the city and the city’s officials refuse to pay - complainant such amounts; that complainant is informed and believes that if the city would state the account of each of said vouchers, charging and crediting thereon none but proper charges and credits, there would be money enough to the credit of each of said vouchers to pay the same in full.
    In an amended and supplemental bill it is alleged to be the duty of the city as trustee to credit the several installments of' said vouchers, with the respective amounts due thereon, and use the same in payment of the vouchers; that the city is trustee of the funds of the several installments and such funds cannot be lawfully used by the city to reimburse it for any disbursements properly chargeable against other installments, as it is said they have been; that the city has purchased at the sale of lands liable to pay such assessments sundry parcels of such land, still holds the result of such purchase and charges the whole amount of such purchase against the respective installments mentioned in said vouchers, when in fact it has no right to charge the same or any part thereof against said installments; that one or more of said special assessments was assessed in part upon real estate belonging to the city and that as to such ¿mounts the part required to pay the vouchers "should be paid by the city.
    The amended and supplemental bill states that after the filing of the original bill, complainant instituted mandamus proceedings against the city to compel it to pay the public benefit judgments due on account of said several special assessments, but that nevertheless it is entitled to the relief prayed for. The bill prays for an accounting under direction of the court, that the city be required to pay complainant the amount justly due it on each of said vouchers, together with interest thereon, and that if there is not enough money properly to the credit of any of said vouchers to pay the same in full complainant may have a decree against the city for the balance thereof.
    The answer of the city denies material allegations of the bill, and rests its defense substantially on the ground that the contractor’s right of payment for work done under contracts for local improvements made under special assessments is not an absolute right but ■statutory, and that by written agreement made in each case it is confined to the amount which shall have been actually collected by the city through the respective special assessment proceedings. The city denies the allegation that on a proper statement of accounts there will be funds enough to pay the vouchers,
    The cause was referred to a master. His report having been approved, a decree was entered finding the material allegations of the bill to be true, that there are certain appropriations out of which the vouchers could be lawfully paid, that the amount due December 8, 1906, was $11,101, and that this should be paid as follows: out of funds collected and held in trust to pay these vouchers $5,092.49; out of appropriations in 1905 to pay public benefits $5,135.55; and out of appropriation of $75,000 for payment for property purchased by the city in special assessment proceedings $872.96, making up the total of $11,101. It is decreed that said sum of $5,092.49 if not otherwise paid, shall be paid out of an “appropriation of $352,060 for “repayment to old law special assessment fund amounts illegally transferred at various times.” It is further provided that all of said amounts and interest thereon not paid out of said three appropriations be paid out of an appropriation made in March, 1906, “to pay any decree against the city and to enable the comptroller to comply with any decree that may be rendered” in this cause.
    George A. Mason and Frank Johnston, Jr., for appellant; Edward J. Brundage, Corporation Counsel, of counsel.
    Holden & Buzzell, for appellee; William H. Holden, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

It appears that by reason of payment by the city of public benefits assessed against it for certain local improvements, which payment was made in accordance with a judgment rendered in mandamus proceedings (City of Chicago v. The People, 215 Ill. 235), the claims of complainant on many of the vouchers referred to in the bill have been satisfied in full. The controversy is therefore now confined to the remaining six of the warrants or vouchers referred to in the bill of complaint. There seems to be no dispute as to the correctness of the computation by which the amount due complainant, including principal and interest on said unpaid vouchers, is fixed in the decree at $11,101. It is, however, denied in behalf of the city that interest can be allowed after the collection of the assessments and denied that there are any funds in the city’s hands actually applicable to payment of the amounts due on the vouchers. It is said to be undeniable “that there are practically no funds whatever actually in the warrants,” the precise condition being that there is a deficit varying from between three and four hundred dollars to over seven thousand dollars in all of the six cases.

(1) As to the contention that the decree improperly allows interest on the vouchers after their maturity, if the decree is correct as to the principal of the vouchers, we are of opinion the interest was properly allowed. In City v. The People, 215 Ill. 235-239, supra, after reference to the statute it is said: “from these sections of the statute it is clear that the several installments assessed against private individuals shall bear interest from their date until maturity and they shall also bear interest until paid. The portion of the assessment payable by the public seems to be placed upon the same footing as the portion payable by private individuals.” It was held that no distinction should be made. In the case at bar the decree provides for payment of the amounts found due complainant, first, out of funds collected by the city and held in trust by it to pay the vouchers; second, out of an appropriation made to pay public benefits; and third, out of an appropriation to pay for property purchased by the city at sales for the unpaid special assessments; and that all of said amounts found due, with interest thereon, and not paid out of the three appropriations above mentioned, should be paid out of another appropriation made by the city “to pay any decree versus the city and to enable the comptroller to comply with any decree that may be rendered” in"the present cause. One of the appropriations was for $352,060, “for repayment to old law special assessment fund amounts illegally transferred at various times”—an implied confession, it may be remarked, that such illegal transfers had been made. If there were illegal transfers of trust funds which should be applied on these vouchers, as the decree seems to have found, no reason appears why the city should not pay interest on money thus illegally borrowed, as well as upon any other borrowed funds. As to the amounts due from the city for public benefits and upon its purchases at tax sales applicable to the vouchers in question, no reason is perceived why the city, if liable for the principal, should not pay interest. As to the public benefits assessed against the city, the question of interest has been settled in 215 Ill. 235-239, above cited. The principle there stated is, we think, applicable in like manner, in case of tax purchases by the city of property sold for non-payment of these assessments, which the city is by law authorized to purchase (E. S. of 1893, p. 274, sec. 159) and for which purchases it has not paid.

(2) It is said in behalf of the city that the special assessment vouchers in controversy “are payable solely out of their respective special assessment funds and the city of Chicago cannot legally pay them out of its general funds,” that there are no such assessment funds in its hands, and the city has no power to appropriate any for payment of these vouchers. The provisions of the special assessment law referred to are found in sections 49 and 64, article IX of the Cities and Villages Act. The first of these (section 49) provided that “all persons having any contracts with the city or village and who agree to be paid from special assessments shall have no claim or lien upon the city or village in any event, except from the collections of the special assessments made for the work contracted for.” Section 64 further provided that “any persdn or persons accepting vouchers as provided herein for work done or performed upon local or public improvements shall have no claim or lien upon the city, incorporated town or village, in any event for the payment of said vouchers or the interest, except from the collection of the installments for which said vouchers are issued and provided, that this section shall apply to all holders of any of said vouchers, whether the original contractors or their assigns.” To the same effect is a provision in section 9 of the Local Improvement Act of 1897. It is said by counsel for the city that these provisions of the special assessment law have been held valid and binding (City of Alton v. Foster, 207 Ill. 150), and that “the city is powerless by ordinance to make itself liable in the face of the express provisions of the statute” (City of Chicago v. Brede, 218 Ill. 528), and cannot appropriate funds to be used in payment of special assessment vouchers or bonds where there is a deficit in special assessment funds. The city’s contention is stated more fully as follows: that “appellee cannot be allowed to recover in this proceeding from the general funds of the city, but is limited solely and exclusively to recovery from the special assessment funds against which its vouchers are issued;” that “if there are no such funds actually in existence, but instead there are deficits in the warrants of the funds, then clearly the appellee cannot maintain this suit. It must seek relief by some other remedy.” It is further said to be “an undisputed fact in the record that there are no funds to the credit of these warrants,” and that “there is no evidence whatever that the city in its corporate, capacity used any of the special assessment funds for its corporate uses;” that appellee is seeking to recover “on the' pure fiction that there should be funds in the several warrants when in point of fact there are none.” There is no material controversy as to the force and effect of the statute referred to. The material question is one of fact.

We deem it unnecessary to set out in detail the evidence, all of it derived from witnesses in the employ of the city, as to the condition of the funds applicable to each of the warrants here in controversy. It is, however, far from being an “undisputed fact” that the city does not hold funds to the credit of these warrants upon a proper accounting. Taking one of the warrants as an illustration, there is evidence tending to show in reference to “Special Assessment Voucher Warrant No. 17352, Estimate No. 1. and Final of Installment No. 5,” which voucher is described in the statement hereinbefore made, that upon the fifth installment of said Warrant “No. 17,352,” the city has collected $11,380.73; that it has paid out therefrom $9,465.92, leaving a balance on hand of..........'..$1914,81

The city, it is said, has appropriated for pub-lie benefits assessed against it on account of the improvement,.................................................... 7151.11

Making a total fund of........................................ $9065.92

The balance claimed to be due appellee on this voucher is $6955.69; showing apparently an amount in the hands of the city applicable in payment of this fifth installment of over $2,000 in excess of the amount of the voucher. The city, however, introduced evidence tending to show that the record of the Board of Local Improvements shows the condition of warrant No. 17352 as a whole—not the several installments— to be as follows:

Principal collected on the warrant,............ $49,424.61
Interest, ............................................................ 7,702.66
Making a total of................................ $57,127.27
Less discount allowed by city collector........ 68.42
Leaving a net amount collected of—. $57,058.85 The debits appear to be as follows:
Vouchers issued, including the one in controversy, ......................................................... $50,686.51
Interest, ............................................. 8,489.49
Costs, .................................................. 3,221.07
Overpaid interest refunded,............ 37.17
Total, .......................................... $62,434.24

This statement leaves an apparent deficit of $5,375.39 from which, deducting what are called uncollected public benefits of $1,818.51, the apparent net deficit would be $3,556.88, provided appellee’s voucher of $6,955.69 should be paid in full. Until it is so paid there is apparently, even on this showing, a balance of over $3,000 applicable, for aught that appears, on account of complainant’s voucher. There is, however, so far as we discover, no evidence tending to show that the disbursements apparently made according to such record were actually made, or that they are properly chargeable to account of that warrant. In the case of this warrant, as in each of the other warrants, the amounts collected by the city on the particular installments for which complainant holds the vouchers in controversy, including amounts appropriated by the city to pay the public benefits and amounts represented by tax certificates held by the city, are apparently, as there is evidence tending to show, more than sufficient to pay all the complainant’s vouchers in controversy.

If, as claimed by complainant, the accounts should be so made up as to show the proper credits and disbursements as to each of the several installments, and that if there have been over payments made by the city upon any installment (as to which there is no competent evidence apparently), such over payments could not properly be charged to the other installments, then it would be unnecessary to inquire what over payments, if any, there were as to- any installment except those- against which the vouchers in controversy have been drawn. As to these last we are of opinion, as above indicated, that the evidence tends to show a balance on hand in excess of the amounts claimed by complainant on each voucher. We are inclined to concur in complainant’s contention that each installment is properly chargeable only with its own expenses. The provisions of the statute applicable as to installments may be found in sections ,168a and 168i, pages 276-277, E. S. of 1893. In these sections it is provided in substance that from the first payment for any improvement when 'collected “shall first be paid all the costs of making the said assessment, including court costs,” and that the remainder be paid “on the contract for said work.” The amount remaining due upon the contract for the improvement is then to be divided into four equal parts and vouchers issued “for each part, payable in the same order and manner that the installments are payable,” and to bear the same rate of interest. These provisions seem to contemplate no charges other than such as properly pertain to the collection and payment of the installments themselves against the “four equal annual installments” into which “the amount remaining due upon the contract for said improvement” is to be divided after first paying “all the costs of making the said assessment, including court costs.” It is not enough therefore for the city as trustee of the funds collected on these assessments, including such sums as are due and owing by the city itself to such funds, merely to show—as in case of Warrant 17,352, for example—that it has made a lump charge of $3,221.07 against the assessment as a whole for “costs.” It must be able to show the facts from which the propriety of these disbursements can be determined. What is said in City v. The People, 215 Ill. 235-239, supra, is applicable in substance; namely, that it is the duty of the city to “set out clearly and definitely in detail all of its items of receipts and expenditures so that the court can see that it is not the fault of the municipality that the debt is not paid.” .This the evidence entirely fails to do. The city has, we think, clearly failed to show that it has not on hand “from the collections of the special assessments made for the work contracted for,” sufficient money to pay the vouchers in controversy.

(3) In certain of the warrants there have been “abatements” made by the city after confirmation of the assessments and before their collection. These seem to have been made by the city in administering the fund and not by the court. It is urged in behalf of the city that such reductions “cannot be considered in contemplation of law as having been collected and as constituting an available part of the special assessment fund. In case of one of the warrants in controversy these reductions amounted to over $4300. It is conceded that these abatements were irregular and improper, that no official of the special assessment department of the city could “reduce or modify in any way the assessment as confirmed by the court.” It appears to be contended, however, that the only way in which the city can be compelled to collect and account for these abatements is by mandamus, that the money not having been actually collected, no claim therefor can be made against the city. In view, however, of the fact that the decree in this case does not require the city to pay complainant any money on account of the sums remaining so uncollected, it is unnecessary further to consider the question. •

(4) It is urged that where a municipality in default of other bidders becomes the holder of tax certificates on property sold to enforce the collection of delinquent special assessments, such tax certificates cannot be treated as such cash assets in the special assessment funds; and that a municipality is not liable out of its general funds to holders of special assessment vouchers for the amount of such tax certificates. It appears that the city has appropriated money to pay “for property purchased by the city in special assessment proceedings.” As we have said, the law authorizes the city to make such purchases. If such sale is made to a private individual he would be required to pay the amount bid at the tax sale upon receiving his certificate of purchase or a tax deed. No reason is apparent why there should be any distinction between a municipality and an individual in that respect. It is said that before seeking to hold the city liable for amounts due upon such purchases, resort must be had “to the proper remedy to compel the city to take such action,” referring apparently to mandamus. We do not concur in this view. The city has not refused, so far as appears, to pay for these purchases. On the contrary, an appropriation for the purpose has been made and the money set apart. Its application to the proper assessment fund is a mere matter of bookkeeping, an administrative function, for which no writ of mandamus has so far appeared to be necessary. In City of Chicago v. The People, 215 Ill. 235-236, before referred to, the petition for mandamus prayed for the writ to compel the city “to appropriate in their next annual appropriation ordinance such sum or sums of money as were necessary to pay such public benefits and interest thereon. ’ ’ The writ was issued 1 ‘ commanding respondents to make an appropriation.” This the city has done and has paid, as is conceded in this case, amounts so appropriated. An appropriation to pay for such purchases at tax sales having been made, no reason as yet appears why payment could not if necessary be enforced by judgment. In case of unliquidated demands ‘ ‘ and in cases where the liability is doubtful and disputed, mandamus is not an appropriate remedy in the first instance. The claim must first be established and liquidated by a judgment, and then if the proper authority refuses to provide for its payment, mandamus lies to compel it to do so.” A. & E. Ency. of L., 2nd. ed., vol. 19, p. 793. We are unable to concur in appellant’s contention that the city had no right nor power to make such appropriation for tax certificates on land sold for unpaid special assessments, which it is expressly authorized by statute to so purchase. In support of this contention we are referred to City of Chicago v. Brede, 218 Ill. 528, which is not, we think, in point. The case at bar is not one where the city “has sought to make itself liable in the face of the express provision of the statute.” In making such appropriation the city was, we think, using reasonable diligence to cause the assessment to be collected and the vouchers paid as the statute requires.

For reasons indicated the decree of the Superior Court will be affirmed.

Affirmed.


text:
    The Brunswick-Balke-Collender Company v. Adolph Nix.
    Gen. No. 13,601.
    1. Jurisdiction—what waives right to object to. Jurisdiction to reinstate a cause after dismissal is waived where it appears that the defendant, after the reinstatement, entered into a stipulation providing for the passing of the cause, went to trial, examined and cross-examined witnesses, introduced testimony, argued the case, etc.
    2. Evidence—when admission of, erroneous, in action for personal injuries. Testimony descriptive of a plug is not competent, and its admission is ground for reversal where it does not appear that the plug described was the one claimed as the cause of the injury in suit.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed and remanded.
    Opinion filed January 28, 1908.
    Rehearing denied February 11, 1908.
    Statement by the Court. This is an action to recover for personal injuries. Appellee was in the employ of appellant and was operating an automatic turning lathe used for boring stoppers. While so engaged, a plug which held a small bit for boring, became detached and flew off, striking plaintiff in the eye. He states that at the time he was hurt he “was reaching over to get another stopper and the bit and plug flew out and hit me in the eye. ’ ’
    These stoppers are used upon wires, holding counters, of button-like shape, usually strung over billiard tables for use of the players in keeping count during a game. The stqppers are placed on the wires to stop the counters within prescribed limits. In order to keep the stoppers in position on the wire a small hole was bored in its side to receive a thumb screw by which it is fastened to the wire and kept in position. Appellee was boring these holes when injured.
    The boring was done by a small steel bit attached to a wooden plug which is inserted in a hole in the end of a spindle. When the machine is in motion the spindle, including the plug and bit, revolve rapidly, and the bit bores a small hole extending to the center of the stopper, which is held against the bit by the operator. Appellee had done this boring on a number of former occasions. The day before the accident he used the same bit most of the forenoon and about four hours the day following, when the accident occurred. There is evidence tending to show that this was not the first time the plug had come out when appellee was using the machine in boring. The same thing had occurred three or four times before and on these occasions the plug had fallen or been thrown harmlessly on the floor. On such occasions it had been replaced for appellee by the same man who put it in and replaced it for him when it came out while appellee was using the machine the day before the accident.
    The cause was submitted to a jury which found in favor of appellee and assessed his damages at $5,000. Judgment was entered accordingly, from which this appeal is prosecuted.
    John Barton Payne, F. J. Canty and J. C. M. Clow, for appellant.
    B. J. Wellman, for appellee; Arthur A. House, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of appellant, first, that the courf entirely lost jurisdiction of the cause when it had been called for trial, dismissed for want of prosecution and the Superior Court had refused to vacate the order of dismissal. After such dismissal and upon the same day the motion to reinstate was made before another judge of the same court. The motion was continued to the next term and some months afterward, several terms having intervened, the order of dismissal was vacated. We are of opinion, however, that defendant having subsequently submitted to the-jurisdiction of the court, having entered without reservation into a stipulation with appellee’s attorneys, in accordance with which the case was passed to be taken up on five days’ notice, having subsequently gone to trial examined and cross-examined witnesses, introduced testimony, argued the cause before the-jury, requested instruction from the court, submitted a motion for a new trial and taken what steps were deemed necessary in defending upon the merits, it must be held that whatever right of objection it may have had to the court’s jurisdiction has been waived. Prall v. Hunt, 41 Ill. App. 140; Herrington v. McCullom, 73 Ill. 476-479.

It is urged that the plaintiff assumed the risk of injury in the operation of the machine, that such risk' was entirely open and obvious, that he was familiar' with the plug and all the conditions and knew the plug” was liable to work loose because it had done so three- or four times while he was using it. It is further contended that defendant was not guilty of negligence- and that there were errors in the admission of testimony.

In the view we' are compelled to take of the admission of-certain testimony material to the issues, we-need not consider at length other questions presented. The negligence charged in the original declaration is that the bit was negligently attached and fastened to the revolving shaft. Subsequently six additional counts were filed, in which the negligence averred is, first, that plaintiff was furnished with unsuitable, improper and unsafe tools; second, that he was a minor and was not properly cautioned, warned and instructed as to hidden and latent defects and dangers in the machine; third, that he was negligently ordered to work with a bit or appliance out of repair and unsafely and insecurely fastened; fourth, that the bit, tool or appliance was carelessly, negligently and improperly constructed; fifth, that steam power was negligently applied with unnecessary and excessive force, causing the bit to. be detached and thrown against plaintiff; and sixth, the defendant so carelessly ran and operated the machine that by such negligence the bit, tool or appliance was detached and thrown against the plaintiff, causing the injuries complained of. In his testimony the plaintiff stated that the plug* he was' using to which the boring bit by which he was injured was attached had a shaft which was only half an inch in length from its “shoulder” and that it was inserted in the spindle or shaft only half an inch. It is evident this testimony had an important bearing on the question of defendant's alleged negligence in the use of the plug in question. Appellee testifies that he obtained the plug himself from a box, took it to the foreman, telling’ the latter he had to do some boring, that the foreman told appellee to get a certain employe who would put the plug in for him, that this was done, that the plug “went into the shaft about half an inch,” and that on each occasion when he was boring he used the same plug. There is evidence tending to show that plugs were in common use for the same purpose and in the same way as the one in question. The plug was “hammered into ’ ’ the place in which it was inserted in the spindle or shaft. These plugs were made by one of the employes of the defendant. The hole in which the plug was inserted is said by one of appellee's witnesses to have been about 2y2 inches in depth, and this witness who says he thinks he made the plug in question states that “it was about iy2 or 1% inches long,” that “the part of the plug that projected into the shaft was about half an inch or five-eighths inches long, something like that.” He states on cross-examination that “we used to make those plugs about 2% inches long. I made them so they would fit in this hole. ’ ’ The man who set the plug in question for appellee and testified in his behalf says the plug was “about 2y2 inches long,” and that it projected into the lathe “about an inch and a quarter or an inch and a half.” The same witness states that he gave plaintiff instructions pertaining to the use of the plug. There was therefore manifest discrepancy in the evidence introduced in behalf of plaintiff as to the depth to which the plug in question was inserted in the spindle. In order apparently to corroborate plaintiff in his statement that it was inserted in the hole only half an inch, plaintiff’s brother and father were called as witnesses. The former states that he saw a “wooden plug containing a bit” which was brought to the plaintiff’s home after the accident by someone unknown to him, and that “the part which entered the shaft was a half inch.” This testimony was admitted over defendant’s objection. A motion to strike it out was denied and exceptions were preserved. The father of the plaintiff was then put on the stand and was permitted in like manner, over objection, to describe the plug which he states he also saw at his home, and which he says extended into the shaft half an inch. The admission of this testimony was clearly erroneous and the error was, we think, material. The plug which these witnesses described was in no way identified and there was no evidence even tending to show that it ever was used in the machine in question, much less that it was the plug containing the bit by which the plaintiff was injured. There was evidence in behalf of defendant tending to contradict plaintiff’s evidence as to the plug and to show that these plugs were inserted in the shaft from about an inch and a half or two inches to two and a half inches, instead of only half an inch as plaintiff now states, though he apparently testified differently on a former occasion. The jury might readily suppose when the court permitted the introduction of the testimony of the two witnesses referred to that it was on the presumption they were testifying from personal examination of the identical plug which caused the accident, when in fact there is no warrant for any such presumption in the record; not even in plaintiff’s testimony that the last time he saw the plug and bit which hit him was* at his home when it was brought there by a man whom he don’t know. The evidence objected to was incompetent from any view and its admission was, we think, reversible error.

The judgment of the Superior Court must be reversed and the cause remanded.

Reversed and remanded.


text:
    Waukesha Canning Company v. Henry Horner & Company.
    Gen. No. 13,608.
    1. Contracts—what not legal rescission. Part of a shipment of merchandise cannot he accepted and the balance rejected, nor is a legal rescission effected by the acceptance and use of a part of such shipment, followed by a purchase upon the market of like merchandise, as that used, and a return thereof, together with the unused balance of the shipment sought to be rejected.
    2. Burden of proof—where merchandise is claimed as under contract grade. Where there is evidence tending to show the sale and delivery of merchandise and its acceptance by the vendee, the burden of showing that such merchandise was not such as was called for by the contract rests upon such vendee.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed and remanded.
    Opinion filed January 28, 1908.
    Rehearing denied February 11, 1908.

      Ritsher, Montgomery, Hart & Abbott, for appellant.
    Whitman & Horner, for appellees.
   Mr. Justice Freeman

delivered the opinion of the court.

Material facts out of which the controversy in this case arises are that in January, 1904, the appellant contracted to sell appellees 1,000 cases of canned corn to be shipped when packed for the season’s delivery. In September following 750 cases of this corn, constituting a single carload, were shipped to appellees. At this time the price of corn such as contracted for had fallen about ten cents a dozen below the contract price of seventy-five cents a dozen. Hpon receipt of the corn so shipped it was examined, it is said, by one of appellees, and thereupon appellant’s agent was notified not to ship the remaining 250 cases called for by the contract, appellees claiming that the shipment received by them was not up to grade. Appellant insisted the corn was according to contract. There is evidence, however, tending to show that appellees offered to accept and retain the corn which they had received if allowed a deduction of $87.50 from the invoice price. No agreement having been reached, appellant brought suit and upon that trial a verdict was returned in favor of appellees. While the cause was still pending on a motion for a new trial appellant offered to take hack the entire shipment of 750 cases in controversy, dismiss the suit and end the litigation. This offer was accepted and appellant gave an order on appellees for delivery of the corn to teamsters employed for the purpose by appellant.

Meanwhile appellees claim to have discovered that they had sold and delivered to customers of theirs ninety-óne cases of the corn shipped them and could not, therefore, return the whole original shipment of 750 cases. Thereupon appellees went out into the market and discovered that they could purchase ninety-one cases of the same brand of corn from a wholesale grocery firm in Chicago. This they did, and without notice to appellant caused the ninety-one cases so purchased to be loaded on appellant’s wagons, together with the remainder which they had on hand, of the original shipment made to them by appellant. The latter’s agent, having discovered that ninety-one of the cases so loaded upon his wagons was not a part of the original shipment, refused to take back the goods. Appellees claim that thereupon they offered to accept the return to them of the ninety-one cases; but they refused to allow the teamsters to put the rest of the corn back into their warehouse. Appellant thereupon caused the whole quantity of corn to be stored subject to the order of appellees. The warehouse receipt for the ninety-one cases nót a part of the original shipment was delivered to and accepted by appellees. The warehouse receipt for the rest of the corn was likewise tendered appellees, who refused it.

At the trial evidence was introduced on both sides as to the condition of the original shipment; that in behalf of appellant tending to show that the corn shipped was strictly in accordance with the contract, and that in behalf of appellees tending to show that it was not strictly full standard corn. In the view we take, however, it is unnecessary to consider that evidence. At the conclusion of the evidence appellant moved the court to instruct the jury to return a verdict in its favor, upon the ground that the undisputed evidence showed that a part of the goods in controversy had been sold by appellees after receipt of the whole shipment, and that the acceptance and sale of a part constituted in law an acceptance of the whole. The court refused so to instruct, and appellant insists that such refusal was error which requires a reversal of the judgment in appellees’ favor.

It is contended in behalf of appellant that the acceptance and sale by appellees of a portion of a shipment of goods amounts to an accceptance of the whole shipment. There is no question, and appellees concede that they accepted and converted to their own use in some way ninety-one cases out of the original 750 cases. Notwithstanding such acceptance and conversion of a large part of the goods they had contracted for, they now claim the right to reject the balance upon the alleged ground that the goods were not np to grade. We do not so understand the law applicable. It is well-established law that a party cannot affirm a contract in part and rescind it as to the residue. If he rescinds at all he must rescind as to the whole. Unless the property is entirely worthless—and there is no such claim in this case—the party seeking to rescind must put the other party in as good condition as he was in before the sale, by making return of the property purchased; and he must do this within a reasonable time and before exercising acts of ownership over the property, as was done in the case at bar by selling a part of the goods in controversy. If he so disposes of them before objecting to the goods on the ground that they are different in quality from the goods he purchased—the claim that appellees make in this case—he cannot afterward repudiate the contract, as appellees seek to do, and wholly defeat the vendor’s claim for the price. Wolf v. Dietzsch, 75 Ill. 210; Harzfeld v. Converse, 105 Ill. 534-539; Rothschild v. Wise, 81 Ill. App. 95-98; Telford v. Albro, 60 Ill. App. 359; Lenz v. Blake, 44 Oregon, 569-574. In the latter case the defendant had sold a part of the goods before discovering their defects, and was held to have thereby accepted them. It was said he was entitled only to a counter claim for such damages as naturally resulted from a breach of an alleged warranty. Here appellees make no claim for damages and so far as appears suffered none. See also Babcock v. Hutchinson, 4 Lansing (N. Y.) 276.

It is urged in appellees’ behalf, however, that the reason of the doctrine of rescission as above stated is that the vendor must be made whole and placed in the game position he was in before the sale, and that appellant has been made whole by delivery to it of the same number of cases of the same brand of corn. It is new doctrine that appellees, after using ninety-one cases of the corn—selling* it to their customers, as they state— can then go into the market and buy ninety-one other cases at a less price, it may be, than the original contract price, surreptitiously replace with such new purchase what they have appropriated, and then tender back the corn so newly purchased as if it were a part of the original shipment, together with the unsold remainder of such shipment, and claim that they have restored" the vendor to his original position before the sale. Appellees may have acted “in the highest good faith,” as their counsel contend, but if so they failed to manifest a high order of good faith when they attempted to conceal the fact they had converted ninety-one cases of the corn to their own use, by tendering to appellant ninety-one other cases as if they had been a part of the original shipment.

It is asserted by appellees’ attorneys that appellant “with full knowledge that ninety-one of the original cases of the corn had been sold and that ninety-one cases had been substituted, accepted the 750 cases of corn delivered to it after the first trial in full settlement of this cause of action.” Our attention has not been called to any evidence tending to sustain this statement, and it requires no further consideration. We find no evidence of rescission of the original contract nor of an accord and satisfaction between the parties. Appellees bought the corn, received it, used or disposed of part of it without making any objection to its character or quality, thus making it their own, and no sufficient reason appears for exempting them from the ordinary liability of a purchaser to a vendor.

We are inclined also to agree with appellant that in view of the evidence tending to show the sale and delivery of the corn in controversy, together with its acceptance by appellees, the burden of showing that it was not such corn as the contract called for rests upon appellees, and that it was error to instruct the jury to the contrary or, at least, in language susceptible of such construction.

For the reasons indicated the judgment of the Superior Court is reversed and the cause remanded.

Reversed and remanded.