text:
    Edwin C. Day, Trustee, Appellee, v. Luna Park Company and James O’Leary, Appellants.
    Gen. No. 16,480.
    1. Bankruptcy—evidence not showing value of asset. In a proceeding by a trustee in bankruptcy to recover the value of a bar concession in an amusement park claimed to have been wrongfully forfeited, an offer of a creditor to buy the concession for a certain amount is not entitled to great weight as evidence of value, as the return from the investment to the witness would include a refund to him of that proportion of it which his claim bore to all the liabilities.
    2. Conspiracy—evidence insufficient to show conspiracy to deprive concessionaire of property. An amusement park by contract granted a license to a concessionaire to conduct a bar. The contract provided that the park’s percentage of the receipts should be paid daily and had other stringent provisions, noncompliance with which would work a forfeiture. The principal stockholder, the substantial' owner, permitted settlement from time to time to be deferred for many days. He showed an eagerness to bring the relations to an end and upon a check from the concessionaire being returned because of insufficient funds, he declared a forfeiture of the license. Held, the evidence was insufficient to show a conspiracy to deprive the concessionaire of his property.
    3. Contracts—when forfeiture of license may he declared. Where a contract granting a license to a person to conduct a bar in an amusement park provides that the park’s percentage of the receipts shall be paid daily and on a default a forfeiture may be declared, on a return of a check given by the concessionaire because of insufficient funds, a forfeiture of the license may be declared even though the park company from time to time permitted settlement to be deferred for many days.
    4. Bankruptcy—when concession license does not pass to trustee. Where a contract by an amusement park company granting a license to a concessionaire to conduct a bar provides that it must not be assigned or transferred without the consent of the park company, on the concessionaire becoming bankrupt the license does not pass to his trustee in bankruptcy.
    5. Equity—when remedty is at law. Where a bill by a trustee in bankruptcy of a person having a license by contract to conduct a concession in an amusement park alleges that by a conspiracy between the park and the principal stockholder the license was forfeited and that property was withheld from the concessionaire, and the decree ordered the forfeiture to be set aside and awarded a sum of money for the value of the concession, the theory of the bill and the decree is fallacious, since the remedy is at law for a breach of the contract.
    Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Reversed with directions.
    Opinion filed November 18, 1912.
    Statement by the Court. One Louis Sbarbaro entered into- a “concession contract” with The Lnna Park Co., a corporation running an amusement park, September 24,1906. By it the Company granted Sbarbaro permission to occupy for five years a parcel of land (85 by 75 feet) on the main promenade of the amusement park; Sbarbaro on his part to erect a building on it to cost not less than $4,000, to furnish all necessary tables and chairs for adequate service about Company’s grounds, and suitable equipment for service in the building.
    Numerous other provisions binding on the respective parties were included in the contract, important among them being the following:
    The “concession” being for “wines and liquors,” the “concessionaire” agrees that “the price for draught beer sold by him thereunder shall not exceed five cents per glass.” Concessionaire further agrees to furnish and sell cigars. “All improvements are to revert to the Company at the termination of the contract under any of the provisions thereof.” “Concessionaire further agrees that the concession thereby granted to him shall he operated by him in connection with the concession contract number 29, and that all waiters employed thereunder shall serve both food and liquor.” The concessionaire agrees to pay to the Company ‘1 as compensation for this concession license and the use of the premises, etc., thirty per centum of the gross receipts from all sources derived from the operation or maintenance of this concession and every part thereof, etc., payable as hereinafter provided.” “The Company shall have the right to appoint * * * a cashier to carry out the provisions of this contract for its protection and the salary * * * which shall not exceed two dollars a day * * * shall be paid out of the concessionaire’s share of the gross receipts * * * weekly.” “The concessionaire covenants to use only electric lights, * * * that the current for said lights shall be furnished by said Company, and that he shall pay therefor” at certain rates. The payments are to be made weekly.
    “It is expressly understood and agreed that said part, parcel, building, structure or space in said Luna Park is not leased to the concessionaire; that he is a licensee and not a lessee thereof; that his right to occupy the same and to operate the concession hereby granted shall continue only so long as each and all the undertakings, provisions, covenants, agreements, stipulations and conditions herein contained on his part are strictly and promptly complied with. In case he shall default in the strict and prompt performance thereof, or of any of them, the Company may immediately or at any time after such default close up and take possession of said part, parcel or space in Luna Park and of any and all buildings and structures erected thereon, except as hereinafter provided, and the said concession and license to the concessionaire ‘’shall thereby be forfeited, together with all privileges to occupy or use any part of said part, parcel, building or structure or space in said Luna Park.”
    “The concessionaire shall have no right, authority or power to sell, mortgage, assign or parcel out this contract or the concession hereby granted to him, nor any interest therein, nor any right, power or authority to allow or permit any other person or party to have any interest in or use any part of the premises, building, space or spaces covered by this concession for any purpose whatsoever, without the written consent of the Company, it being the purpose and spirit of this contract to grant said concession and privilege solely to concessionaire and neither directly or indirectly to any other person or party.”
    “The concessionaire covenants and agrees that said Company shall have the right, through its officers or agents appointed for that purpose., to receive directly from the ticket sellers, cashiers, cash registers or other persons and appliances receiving money in the operation of said concession, all moneys received from any and all sources covered by this agreement, and said moneys shall be taken in charge by the Accounting Department of said Company, and the said Company shall within seven days after the receipt of such moneys return to said concessionaire his share or proportion thereof, less any sum or sums of money which may then be due to said Company from said concessionaire under any provisions of this contract or otherwise.”
    “Should the concessionaire be permitted to receive the moneys from any or all sources of income mentioned in this contract, the concessionaire shall make full statements, settlements and payments of percentages due to said Company under the provisions of this contract every day at such place and time of day as said Company may designate.”
    “The said concessionaire covenants and agrees to supply and have ready for sale each and every vendible article included in this concession in sufficient quantity to satisfy the demands of the patrons of Luna Park at all times on and after the day of the opening of Luna Park until its close at the end of each season, and that he will operate all the features of such concession at such hours of the day and night as said Luna Park shall be open to the public unless prevented from so doing as herein provided. ’ ’
    “It is expressly understood and agreed that the waiver by said Company or its officers or agents of any cause of forfeiture under this contract shall not operate as a waiver of any other cause of forfeiture' or affect any other right of said Company under this contract.”'
    “The concessionaire shall procure at his own cost and expense all necessary licenses and official permits necessary for the purpose of carrying out the provisions of this contract.”
    “All notices and orders herein provided to be given to the concessionaire may be served by mailing the same to bim at his last known place of residence or business outside of Luna Park, or by delivering a copy thereof to him in person or by leaving it, addressed to him, at his place of business in Luna Park with any person then in charge of the same. ’ ’
    “The concessionaire covenants and agrees that should the carrying out of the said purposes of this concession in full be stopped by legal proceedings, criminal or civil, brought against the concessionaire or against any of his employes, then said Company may by written notice to the concessionaire cancel and terminate this concession and contract and thereupon all his rights and privileges herein granted shall cease.”
    “The concessionaire covenants and agrees that if during any period of three successive weeks between the first day of June and the first day of September in any season, said Company’s average weekly percentages of the gross receipts from all sources in the operation of this concession shall be less than one hundred and fifty dollars under the terms of this contract, then the Company may, by a notice in writing to the concessionaire, cancel and terminate this contract and concession, and thereupon all the rights and privileges herein granted to him shall cease and end, and the Company may summarily take possession of and close the premises, buildings, structures, space and spaces included in this concession, and remove therefrom all the property and effects of the concessionaire. ’ ’
    “The concessionaire shall within two weeks after the termination of this contract remove from Luna Park all his personal property, goods and effects, and on his failure so to do, said Company by its officers and agents may cause such removal to be made and said property,, goods and effects to be stored at the cost and expense of the concessionaire, and the said Company shall have a lien thereon for the cost and expenses of such removal and storage of such property, goods and effects.”
    Another contract similar, except that the concession was for a restaurant, that the location for the buildings was at the option of the Company, that the compensation to be paid the Company was to be a flat payment of twenty-five dollars a week during the season, and that the duration of the concession was three years instead of five, was on the same day entered into between Sbarbaro and the Luna Park Co. This restaurant “concession” contained the clause: “Concessionaire further agrees that the concession hereby granted to him shall be operated by him in connection with the concession granted in Luna Park Concession contract number 31” (the bar concession heretofore set forth) “and that all waiters employed thereunder shall serve both food and liquors.”
    Before the Park opened, however, an arrangement was made between the Luna Park Company and Sbarbaro, by which Sbarbaro was allowed and induced by the Company to transfer the restaurant concession to John Grolombiewski, who agreed to pay Sbarbaro $40 a week for it, thus netting an income to Sbarbaro of $15 weekly from it over the rental to be paid by him. To operate the bar concession Sbarbaro erected a building on the premises of the Company and installed therein various fixtures and other property necessary and incident to the conduct of the business. He began business at Luna Park at the opening of the season of 1907, and during the summer of that year he testified in the case at bar that the gross receipts were, he thought, from ten to twelve thousand dollars, which would be at an average of from $700 to $850 weekly. The season is about fourteen weeks, running from Decoration or Memorial Day, May 30th, to Labor Day, the first Monday in September, inclusive.
    Also from the beginning of the season in 1908 to August 24, 1908, a little more than twelve weeks, Sbarbaro operated the concession. The gross receipts for this time were $6,446.70, thus averaging a little over $500 a week, of which 30 per cent, would be at least $166.66 weekly.
    But the evidence shows that for Monday, Tuesday, Wednesday and Thursday, August 17th to August 20th, inclusive, the gross receipts must have been but $80.80; Friday, August 21st, they were $31.50; Saturday, August 22nd, $35.26; and Sunday (always the most profitable day of the week for the business involved), August 23rd, $71.80; thus aggregating for the full week from August Í7th to August 23rd, inclusive, $219.36, of which the 30 per cent, to go to the Luna Park Company amounted to $65.81.
    The answer in the case at bar contains the assertion that “the average weekly percentage of the gross receipts from all sources in the operation of three consecutive weeks next immediately preceding the 22nd day of August, 1908, were less than $150' per week;” but no proof of this' statement appears in the evidence.

      For some reason, however, according to the testimony of Sbarbaro, James O’Leary who, on August 1, 1908, had purchased all or substantially all the stock of the Luna Park Company and had become its . President, did at some time shortly preceding Monday, August 24, 1908, warn Sbarbaro of financial trouble pending over him (Sbarbaro) and urge him on that account to accept a proposition which was then made to him by O’Leary. It is a little difficult (perhaps through clerical errors in the stenographer’s report of the testimony) to determine precisely the date of the conversation we refer to, but it was at least a day before the action looking toward forfeiture taken by O’Leary, and before the dishonor of the check which was its immediate occasion. From the statement' of Sbarbaro as to the sending by 0 ’Leary of an employee as a messenger to him more than once, it would seem as though the warning was earlier than Sunday, August 23rd. But it was at least by that day. Mr. Sbarbaro testified:
    “Mr. O’Leary came to me and says to me that I was going to be closed up by the Sheriff on a Monday morning, and he told me that I should sell out to him; that he would pay my help and pay for my stock, that the brewers were going to screw me, and he sent Mr. Suggs over two or three times. ’ ’
    Sbarbaro further testified that after he had that conversation with O’Leary “on a Sunday afternoon,” he “went on a Sunday evening, August 23rd, and called a lawyer to his house and asked his advice about filing a petition in bankruptcy, and that the lawyer told him to wait, and was instructed by him (Sbarbaro) to prepare the papers to file in case he was closed up “on a Monday.”
    On Friday, August 21st, too late for deposit on that day in the usual course of the Park Co’s business, Sbarbaro had given the cashier of the Company a check on the “Woodlawn Trust and Savings Bank” for $24.24, being the 30 per cent, called for by the concession contract on the gross receipts from August 17th to August 20th, inclusive.
    There were at this time bills for lights and cashier’s wages provided for by the concession contract, amounting at least to $46.25, which were due from Sbarbaro to the Company, and were unpaid. According to the testimony for the complainant they were presented to Sbarbaro at the time of his execution of this check, and he said he could not pay these bills, but would pay his percentage bills with the check in question, and as he expected to have a good day Sunday over the bar he would come in Monday and pay the others.
    Sbarbaro was at the Park on the afternoon or evening of Sunday, the 23rd, for the last time. He left two or three hours before the closing time and never returned. Monday, the 24th, the check which he had given on Friday, the 21st, and which had been deposited after clearing house hours on Saturday, the 22nd, in the Drovers Deposit National Bank, was returned by the Woodlawn Trust & Savings Bank to the Drovers Bank and by the Drovers Bank to O’Leary or the Luna Park Company, unpaid, there not being sufficient funds to meet it. Thereupon O’Leary had his employee Suggs find Sbarbaro at a saloon he had on South Park avenue, and serve on him the following notice:
    “Luna Park Company, 521 Halsted Street,
    James O’Leary General Manager,
    Chicago, Illinois, August 24,1908.
    Mr. Louis Sbarbaro, Chicago: This is to notify you that you have violated your concession contract for the bar and restaurant at Luna Park, and I now take possession of the same.
    Tours truly,
    James O’Leary.”
    Immediately thereafter, on the same afternoon, O’Leary for the Company took possession of all the property appertaining to the bar business at the Park, and ran it. The receipts from the business thus conducted for the 15 days from August 24th to September 7th, inclusive, September 7th being a holiday (Labor Day) and presumably one of the most profitable days of the season of which it was the close, were $776.10, an average of $362.18 for a week, of which 30 per cent, would not amount to $110.
    The actual business of the restaurant concession being in the hands of G-olombiewski, was not disturbed. Golombiewski testified that in 1907 he made a net profit on the restaurant concession of about $2,500, but that in 1908 he made nothing whatever. Before the season began in 1909 he sold to O’Leary for $350 his interest in the concession, including various fixtures, appliances and chattels used in the business, the value of which he estimated at $200. He testified: “Mr. O ’Leary said the best way is to get together and 1 will buy you out and have no more trouble. On that I made the suggestion that I would sell out to Mr. O’Leary.”
    On the service of the notice above mentioned on him and the seizure of the property pertaining to the bar concession, Sbarbaro on the same afternoon instructed his attorney to file a voluntary petition in bankruptcy for him. Such a petition was filed on Wednesday, August 26th. The schedules attached showed liabilities of $15,000 and assets of $15,000, according to oral testimony concerning them, received at the trial of the case at bar. What, if anything, they represented concerning the concession and property involved here, does not appear, however. Sbarbaro was adjudged a bankrupt on August 26th and the complainant in the cause at bar, Edwin C. Day, was appointed receiver of the bankrupt’s estate on August 27th. He was elected trustee of the estate on September 28, 1908. Both as receiver and trustee he made demands on the Luna Park Company and O’Leary to- consent to the setting aside of the forfeiture of the two concession contracts and to turn over to the estate all the property seized by the Luna Park Company. The Luna Park Company and O’Leary refused to set aside the forfeiture and claimed that it terminated all rights of Sbarbaro and his bankrupt estate to the concession contract and the improvements erected by Sbarbaro on the premises of the Luna Park Company. It made no claim on the personal property which had belonged to Sbarbaro, but demanded that it be taken away by the trustee. The trustee refused to take back the personal property segregated from the bar concession, but claimed the money value thereof. Some proceedings seeking the same remedy asked by the bill in this case seem to have been taken in the Federal Court in the bankruptcy case, with what result does not appear; but on May 28, 1909, the trustee, Day, filed his bill in the Superior Court of Cook County, setting up the facts before herein stated, but alleging in addition that shortly after O’Leary purchased the capital stock of the Luna Park Company he and the company entered into a conspiracy for the purpose of fraudulently depriving Sbarbaro of his property and his concession contract rights and converting the same to their own benefit, and that in pursuance of said conspiracy the defendant permitted Sbarbaro to receive the money under the concession contracts and failed to require him to make statements or settlements every day, but allowed him to remain in arrears sometimes ten days, and induced him to think that the time limit about settlements was not of the essence of the contract and would not be insisted on; that because of this Sbarbaro, who believed when he gave the check for $24.24, which was dishonored, that there were sufficient funds to meet it, made no special investigation to ascertain the facts, but assumed that if the bank should refuse the check he would be given a reasonable opportunity to make it good, and that the company would not undertake to forfeit his concessions.
    The bill further, alleges that the asserted forfeiture, the seizure of the property and all the subsequent proceedings of O’Leary and the Luna Park Company in connection therewith were in pursuance of the conspiracy charged.
    The bill then proceeds to set out the ordinances of the City of Chicago relating to dramshop licenses, and alleges that the Luna Park Company secured a license from the City of Chicago covering the premises of Luna Park for the year following May 1, 1909, but that the complainant (Day, trustee) did not, and was unable, by reason of the facts set forth in the bill, to have any assurance that if he procured such a license he could obtain possession of the building formerly occupied by Sbarbaro.
    The bill prays that the forfeiture by the defendants of the concession contracts be declared of no effect; that the defendants be compelled to account to the complainant for the business done and receipts taken from August 24, 1908, to September 7, 1908, and be decreed to pay to the complainant the reasonable cash value of the property seized under the alleged forfeiture, “together with the reasonable cash value of said concession contracts” (bar and restaurant) “sought to be forfeited. ’ ’
    In the alternative the bill prays that if this decree for the reasonable cash value of the concession contracts, and the property seized and converted by the defendants cannot be given, the defendants be held and declared to have acted as the agents of the complainant in securing the saloon license for 1909, and that said license is the property of the complainant; and that it be declared that said concession contracts may be sold by the complainant in due administration of said bankrupt estate, and that the complainant has power to confer good title by proceedings in bankruptcy. Injunctions against removing the property or proceeding further to attempt to forfeit the rights or property of Sbabaro are also prayed, both perpetually and pendente lite.

    The answer filed by the defendants inter alia denies that the concession contracts were of great value, and asserts that they were of no value either to Sbarbaro or the complainant, and also denies that the defendants entered into any conspiracy to wrongfully deprive Sbarbaro of any property or rights or to induce any false conviction in Sbarbaro’s mind about their enforcement of a forfeiture.
    It sets up, as before noted, that the average weekly percentages of the gross receipts from all sources for-three consecutive weeks next preceding August 22, 1908, were less than $150 a week, and also that Sbarbaro was on August 24, 1908, in default in payments for electric light to the amount of $13.25, and in payment of cashier’s wages to the amount of $33, and in payments of percentage bills to the amount of $65.81, and was in default in relation to having on sale for some time before the forfeiture the goods of the quality specified in the concession contracts. It denies that the company undertook to forfeit Sbarbaro’s rights under the contracts and seize the personal property and build-' ing by reason alone of the non-payment of the check for $24.24, but asserts that Sbarbaro having violated the conditions of the contracts, the Company rightfully took possession of the building and property by virtue of the provisions thereof and forfeited said contract.
    The answer also asserts the willingness of the Luna Park Company to account for any wines and liquors theretofore owned by Sbarbaro and sold by it between August 24th and September 7th, 1908, and asserts that all the remainder of the personal property owned by Sbarbaro is stored in a building at Luna Park subject to the disposal of the complainant.
    The cause coming to a hearing on bill, answer, replication, proofs and argument, the chancellor in the Superior Court entered a decree in favor of the complainant, finding all the material allegations of the bill of complaint true, including the existence of the conspiracy charged between O’Leary and the Luna Park Company to deprive Sbarbaro of his property and his concession contract rights. The decree found the bar concession contract to have been on August 23, 1908, and for eight months thereafter of the value of $5,000, and the restaurant concession of the value of $245, and the value of the personal property seized by the defendants at the time of the forfeiture to be $1,495.90. It also found that the alleged forfeiture of the two concession contracts by the defendants was null and void and that the seizure by said defendants of the rights, privileges and property of Sbarbaro was “a wrongful conversion of the rights, privileges and property thus seized by the said defendants to their own use.”
    It ordered, first, that the forfeiture of the two concession contracts be set aside and declared of no effect; and, second, that the defendants pay to the complainant the sum of $6,796.01, with interest from the date of the decree and costs of suit. This sum was ostensibly reached by deducting from the sum of $5,000 $245 and $1,495.90 found to be the value of the property converted, the items of money due from Sbarbaro to the Park Company, $13.25 for electric lights, $33 for cashier’s wages, $25 for payment for the restaurant concession for the week ending August 28, 1908, $41.57 for percentages due under the bar concession for August 21, 22 and 23, 1908, and $24.24 for the repudiated check of August 21, 1908. The discrepancy of $192.17 is attributed by the complainant in his argument here to an allowance for interest from the date of the alleged conversion to that of the entry of the decree. Nothing is said of this in the decree, however.
    The defendants appealed to this court and assign as errors that the court admitted improper and refused proper evidence, that the findings and decree are against the law and the evidence, and specifically that “the decree is excessive in amount,” that the court erred in finding that the said concession contracts, or either of them were of any value whatsoever to the trustee of the estate of Louis Sbarbaro, bankrupt; that “the court erred in finding that the concession contracts could be transferred to the trustee in bankruptcy without the consent of the defendants;” and “the court erred in finding that any rights under the concession contracts, or either of them, passed from Sbarbaro to the trustee in bankruptcy under the voluntary petition in bankruptcy of said Sbarbaro,” and in finding that the trustee acquired any interest in said contracts.
    Pattison & Shaw and Douglas I. Gregg, for appellants.
    Helmer, Moulton & Whitman, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

Examination of the record in this case has convinced us that whatever were our views of the law on the material questions involved, we could not aErm the decree appealed from. Even assuming, as contended by the complainant, first, that the rights of Sbarbaro under the “concession contracts” were never validly forfeited or terminated; secondly, that these rights were property interests which passed as integral matters to his assignee in bankruptcy, and which the “seizure” and attempted forfeiture had not transformed into mere claims for the breach of contracts; and, thirdly, that a Court of Equity had power, under this condition of things, to substitute a money decree on the theory of a tortious conversion, for the relief theoretically more logical and obvious, of merely setting aside the forfeiture and reinstating Sbarbaro’s assignee in the possession of the property and business involved in the concessions; and requiring an account for the time it was usurped by others—we should still be obliged to reverse that money decree on the ground that its amount was against the weight of all the competent, material and cogent evidence to be found in the record thereon. The ultimate decision we have reached on the case as a whole, however, renders immaterial the matter of the values which the court below placed on the various interests and parcels of property, which it considered were wrongfully withheld from the complainant.

We shall not stop, therefore, to discuss any of the details of the values attributed to the various chattels which made up a part of the sum decreed to be paid or to question the computation, except as to- the value of the bar “concession contract.” But we do think it necessary to say that we cannot find in the evidence taken together justification for the appraisement of $5,000 placed on that. In so saying we have fully in mind the testimony of the men familiar with amusement park management, who were introduced as experts and swore that for an unexpired term of three years the concession was worth certain large sums. The testimony, however, to this effect was on a wholly speculative basis, and a careful consideration of the facts and figures of what actually had to be expended by the concessionaire to keep the bar business and concession alive, shows to our satisfaction that no such estimate as was put upon them by three experts should be the basis of any judgment.

While it is true that a bad season m^y be succeeded by a good one and prosperity follow depression, it cannot be wholly ignored in this case that whatever the success of Sbarbaro’s business during the first year of the concession, there was evidently a severe “slump” in the second, and that the concluding portion of the season seems to show a peculiarly bad condition. We shall not attempt to analyze in this opinion, as we have done in our study of the record, the facts and figures on which our conclusion is based. Such an analysis is needless here, as we are of the opinion, as hereinafter set forth, that the assumptions of law above stated, on which alone could be predicated any right of the complainant to recover in this cause, cannot be properly made. We will stop, therefore, on this matter of the value of the “bar concession” only to note that the offer of Mr. Merle to purchase the concession and the personal property involved in it for $3,500, and furnish a man to run the business, might seem to indicate, as nearly as any of the evidence offered by the complainant, that the concession had a considerable value. It must be remembered, however, that the witness was one of the creditors of the bankrupt estate whose return from the investment would include the refund to him of that proportion of it which his claim bore to all the liabilities of Sbarbaro.

But returning to the propositions of law maintained by the complainant and adopted by the court in framing the decree, we must express our disagreement with them.

There is, in our opinion, no evidence of a conspiracy in this case against Sbarbaro or his interests. The evidence seems to us to show an extremely stringent and drastic contract, into which Sbarbaro voluntarily and too sanguinely entered, a declining business, fears both on his part and on that of 0 ’Leary that he would be pressed by other creditors to the wall, insufficient capital or credit on Sbarbaro’s part to stand any continued depression in his business, and a willingness, perhaps even an eagerness on the part of O’Leary, to bring the relations between them to an end, the opportunity given O’Leary to do so by a plain violation by Sbarbaro of the covenants and conditions of the contract, the immediate acceptance of the opportunity by 0 ’Leary, the rigorous but valid enforcement of forfeiture allowed by the terms of the contract, and the immediate and complete abandonment of any personal attempt by Sbarbaro to fulfill the obligations of said contract or to redeem from the forfeiture, and his voluntary rush into a bankruptcy already contemplated.

All this furnishes to our mind no reason for holding there was a “conspiracy,” nor that the previous indulgence shown Sbarbaro by the defendants can be urged as a reason for holding that under the circumstances of the repudiated check, O’Leary for the company had not the right to determine for himself that the time had come for enforcing the letter of the contracts. If words mean anything, the contracts in question were not leases but licenses. They were severe and harsh in their terms as against the concessionaire undoubtedly, but they were voluntarily entered into and at the beginning seemingly coveted. We can not make contracts for people, nor relieve them from their own imprudence in taking undue risks. We think the bar concession, with which alone, for the purposes of this discussion we are concerned, was validly forfeited, leaving nothing to pass to the assignee in bankruptcy of Sbarbaro but his interest in his personal property located in the park, for which the defendants concede their obligation to account in law. If the right to have this forfeiture declared ineffectual does not exist, there is no equitable jurisdiction to be invoked in favor of complainant.

We might perhaps content ourselves, therefore, with stating the conclusion above given as to the validity of the forfeiture. It may not be amiss, however, to define our position also on the other basic propositions necessary to sustain a money decree in this case.

Even if the “forfeiture” had been invalid and the seizure of the premises unjustifiable, no property rights in the concessions would have passed to the assignee in bankruptcy, in our opinion. These concessions as before noted were contracts not conveyances, licenses not leases. They cannot be turned into real property or into chattels, real or personal, by the operation of the bankruptcy laws, or in order to furnish ground for equitable relief, nor because a part of the contract was the building by one party on the land of the other.

The Luna Park Company had a contract with Sbarbaro. If the forfeiture was void and invalid, then the Luna Park Company broke that contract on August 24, 1908, by unjustifiably revoking the privileges and permissions granted to Sbarbaro. For this Sbarbaro had his personal actions for damages and when he went into bankruptcy on August 27th the beneficial right to that action and damages passed to the trustee. Such damages for breach of contract are properly to be ascertained by a jury. No equitable right to the “concessions” vested in the trustee. The authorities cited on the assignability of leases or certain classes of contracts by operation of láw do not seem to us to be of force here. The concession contract was a personal one. It distinctly and expressly precluded by its terms assignability or transfer except by consent of the company. The trustee in bankruptcy could not assure his own or a vendee’s satisfactory personality to the company. Whatever rights there were passing to the trustee either by way of an accounting for money, for goods used, or the seizure and constructive or actual conversion of chattels were legal, not equitable, rights, easily to be adjusted at law.

We think the whole theory of the bill and decree fallacious.

The decree is reversed and the cause remanded to the Superior Court, with directions to dismiss the bill for want of equity.

Reversed with directions.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Henry B. Dale, Administrator, Appellee, v. Chicago Junction Railway Company, Appellant.
    Gen. No. 16,489.
    1. Railroads—when absence of gates is for the fury. A person was killed on a dangerous grade crossing of several railroad tracks over a public highway. An ordinance required a flagman but did not require gates, and there were none there. The evidence as to whether the flagman was in his shanty at the time of the accident and whether a bell was rung on the rapidly moving engine was conflicting. Held, whether the absence of the gates was negligence was a question for the jury.

      2. Railboads—when negligence as the proximate cause is for jury. A person was killed on a dangerous grade crossing of several railroad tracks over a public highway. An ordinance required a flagman but did not require gates, and there were none there. The evidence as to whether the flagman was in his shanty at the time of the accident and whether a bell was rung on the rapidly moving engine was conflicting. Held, there -was evidence of negligence, and whether it was the proximate cause of the accident was for the jury.
    3. Instructions—interpretation. The test is not what the ingenuity of counsel can at leisure work out instructions to mean, but how and in what sense under the evidence before whom and the circumstances of the trial would ordinary men and jurors understand the instructions.
    4. Appeals and errors—when objectionable argument will not reverse. Where a person is killed by the lessee of a railroad company and suit is against the owners, objectionable statements of counsel as to liability for negligence of the lessee may not reverse where the jury are fully instructed on that point by an instruction which concludes with a distinct warning that the court does not intimate that there was any negligence by either the lessor or the lessee.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 18, 1912.
    Rehearing denied and opinion modified and refiled December 2, 1912.
    Winston, Payne, Strawn and Shaw, for appellant; John D. Black and John C. Slade, of counsel.
    C. E. Heckler and I. W. Baker, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal by the Chicago Junction Railway Company from a judgment of the Superior Court against it for $8,500. The judgment is in favor of the administrator of James Dunworth, deceased. Dun-worth was killed February 12, 1906, between 1 and 2 o’clock P. M. by a train belonging to the Lake Shore and Michigan Southern Railway Company running west across Wallace street, a north and south street of Chicago. The death is alleged in the three counts of the declaration on which this case was tried to have been caused by the negligence of the appellant, which thereby became liable to the administrator under the “Campbell” Act, so-called, of Illinois.

The cause was originally brought against the appellant, and the Lake Shore and Michigan Southern Railway Company and the Illinois Central Railroad Company jointly, the allegations in the first count of the declaration as to the appellant being that it owned and controlled certain railroad tracks at the crossing mentioned above, and that it was its duty to see that proper and reasonable care was exercised in the operating of rolling stock on said tracks, and that the defendants, the Lake Shore and Michigan Southern Railway Company and the Illinois Central Railroad Company, carelessly and negligently ran certain of their rolling stock over the intestate, who was on a public highway and in the exercise of due care. The second count charges all the defendants with the duty of using due care to keep the said railroad and highway intersection “properly guarded, watched, cared for and protected” and with the breach of said duty in that they allowed the railroad line at said intersection “to be and remain unguarded and unprotected, without gates and uncared for or improperly cared for.”

The third count submitted to the jury sets up the duty of all the defendants to keep and maintain a flagman at the said crossings for certain purposes specified in the following ordinance of the City of Chicago :

“All railroad companies whose track or tracks cross or intersect any of the streets in the City of Chicago east of the west line of Western Avenue or north of the south line of Thirty-ninth street, and also at all crossings of street or horse railways, shall station,, keep and maintain at all times at their own expense, at each and every of said street and railroad crossings a flagman, whose duty it shall be to signal persons traveling in the direction of any or either of the crossings and warn them of the approach of any locomotive engine or any impending danger. ’ ’

It then alleges that the defendants neglected said duty and that in consequence the intestate failed to receive any signal or warning of the approach of a locomotive or of impending danger, and was killed.

Before the cause came to trial the plaintiff discontinued it ás against the Lake Shore and Michigan Southern Railway Company and the Illinois Central Railroad Company. The Chicago Junction Railway Company was thus left the only defendant, and the cause came to trial before a jury on its plea of not guilty. At the close of plaintiff’s case and again at the close of all the evidence defendant asked for a peremptory instruction in its favor.

The jury found for the plaintiff for $8,500. The defendant moved for a new trial and in arrest of judgment. These motions were denied and judgment entered on the verdict. The defendant in its appeal to this court asks, under the usual assignments of error in such a case, that the judgment may be reversed without a remandment of the cause, on the ground that the cause should have been taken from the jury by the court below both because the evidence failed to show that there was any negligence on the part of the defendant, resulting in the death, and because it did show, so that reasonable minds could come to no other conclusion, that plaintiff’s intestate was himself guilty of negligence which materially and proximately contributed to the accident.

The defendant also maintains that if this court should not agree with either of these two contentions, it should nevertheless reverse the judgment and remand the cause for another trial because of an error in an instruction hereinafter set forth, and because the counsel for the plaintiff made improper statements in his argument to the jury.

It would be useless for us, in this opinion, to elaborate our reasons for holding ill-founded the contentions of the appellant as to the negligence of the defendant and the alleged contributory negligence of the intestate. We have already stated the allegations of the defendant’s negligence on which the plaintiff relies. We think the question was plainly one for the jury. The deceased was killed on a dangerous grade crossing of several railroad tracks of the defendant with a public highway. An ordinance of the City required the defendant to station a flagman there “to signal persons traveling in the direction of any or either of the crossings, and warn them of the approach of any locomotive engine or any impending danger.” Gates were not required by the ordinance, and there were none there. But even the question whether the absence of gates was not in itself negligence, was a question for the jury.

“A railroad company in the running of its trains is required to use ordinary care and prudence to guard against injury to the person or property of those who may be traveling upon the public highways and are required to cross its tracks, whether required by the statute or not. The fact that the statute may provide one precaution does not relieve the company from adopting such others as public safety and common prudence may dictate.” Chicago, B. & Q. R. Co. v. Perkins, 125 Ill. 127.

There was but one flagman and he was south of the slowly moving freight train which had halted Dun-worth and his wife in their crossing of the tracks, and could not, in that position, have warned them of approaching danger. There was conflicting evidence even as to whether or not he was not in his shanty at the time of the accident, and as to whether a bell was rung on the engine of the rapidly moving train which caught the deceased and dragged him under it. Wo think that the evidence established the negligence of the defendant, and that it was a question for the jury under it whether this negligence was the proximate cause of the accident. And we hold that it was equally a question for the jury whether there was or was not negligence on the part of Dunworth materially and proximately contributing to it. As to some of the circumstances the evidence is conflicting. We are not strongly impressed by the argument made that Mrs. Dunworth’s testimony at the trial is materially discredited by the recital from the Coroner’s minutes. As we have already said, we think it is useless here to discuss in detail the evidence adduced at the trial. After a careful study of it we are of the opinion that the jury might properly find, as they did find, that there was not contributory negligence or want of due care on the intestate’s part in any of the matters as to which the jury were carefully instructed in the eleventh, twelfth, thirteenth, fourteenth, fifteenth, seventeenth and eighteenth given instructions, given at the request of the defendant.

The instruction complained of was as follows:

“The court instructs the jury that if you believe from a preponderance of the evidence that the plaintiff has established his case as alleged in the first, second or fourth counts of his declaration, or either of them, then yon should find the defendant guilty and assess the plaintiff’s damages at such sum as you believe from the evidence and under the instructions of the court he is entitled to recover.”

The defendant contends that as the- first count of the declaration alleges that “on the day aforesaid’’ two of the defendants ran certain rolling stock over the person of the intestate', “who was then and there present upon said public highway of Wallace street and in the exercise of reasonable care for his own safetythe instruction might mislead the jury into believing that if at the moment of time and at the exact place when and where he was struck the intestate was in the exercise of reasonable care, it would not matter if he had been careless in putting himself in that place.

We think this is hypercriticism, and that the language used in Funk v. Babbitt, 156 Ill. 408, is here, as it is in many cases, applicable:

“The test is not what the ingenuity of counsel can at leisure work out the instructions to mean, but how and in what sense under the evidence before them and the circumstances of the trial would ordinary men and jurors understand the instructions.”

In the case at bar.the words “then and there” in the declaration, if considered at all by the jury, would be understood to refer to all that part of the “day aforesaid” involved in the circumstances leading to the accident and to all that part of the public highway of Wallace street in which the intestate was charged by the defendant with lacking care.

The contention made by the defendant as to the improper remarks of counsel in his argument to the jury, is, to our mind, the most forceful objection made to the judgment. But we have carefully considered the language used in the light of the entire colloquy between court and counsel, and in the light of the rulings and instructions, and do not think it could have tended to influence the passions of the jury or render them, as maintained by counsel for appellant, “unfitted to fairly decide the issues presented in the case. ’ ’ We cannot' commend the remarks which were made and withdrawn by counsel, but we think it quite plain, from what appears in the record, that the most objectionable of the statements, if the isolated remark was alone considered, referred to and was understood by the jury to refer merely to the question of law as to whether the defendant was liable for the negligence of the tenants of its tracks. On this point the jury were fully and correctly instructed by an instruction, No. 3, which is not complained of by the defendant. After stating that the defendant is liable for the negligence of a company that it permits to use its tracks, the instruction concludes with the distinct warning to the jury that the court must not be understood as saying or intimating that there was any negligence on the part either of the Lake Shore Railroad Company or the Chicago Junction Railway Company, and a statement that whether there was not such negligence was a question solely for the jury to determine from the evidence under the instructions of the court.

We do not find reversible error in the record, and the judgment of the Superior Court is therefore affirmed.

Affirmed.


text:
    Frank Marshall, Appellant, v. Thomas Butler et al., Appellees.
    Gen. No. 16,501.
    1. Mortgages—apportionment of proceeds of sale where mechanic’s lien exists. Where a decree of foreclosure finds the value of the land and of the improvements separately, and directs: that the proceeds of the sale shall be proportionately divided, the part representing the improvements to be paid to mechanic’s lien claimants and any surplus to the owner of the equity of redemption, it will be modified to require any deficiency after application of the proceeds of the land to the mortgage to be satisfied from such surplus from the sale of the improvements and the residue only after the satisfaction of said deficiency to be paid to the owner of the equity of redemption.
    2. Mechanics’ liens—when claim need, not he filed within sixty days. Where an individual undertakes to construct a building on his own property in the name of a construction company which does not exist but is really the individual, those who furnish material are original contractors and not required to give notice or file claim within sixty days as required of subcontractors.
    3. Mechanics’ liens—where intervening petition is filed within four months. In a suit in chancery to foreclose a trust deed, where a mechanic’s lien claimant files an intervening petition within four months from final delivery of material, it is sufficient to defeat the statutory limitation although claim was not filed in the clerk’s office.
    4. Mechanics’ liens—statute construed liberally. The Mechanic’s Lien Act is construed liberally and technical objections are not justified.
    Bill to foreclose deed of trust. Appeal from the Superior Court of Cook county; the Hon. George A. Dupoy, Judge, presiding. Heard in this court at the March term, 1910.
    Decree modified and affirmed.
    Opinion filed November 18, 1912.
    Rehearing denied December 2, 1912.

      J. A. Coleman and Lorenz & Reed, for appellant.
    Leroy & Penwell, Irwin R. Hazen, David G. Robertson and Adams, Bobb So Adams, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

The decree from which this appeal is taken was rendered by the Superior Court of Cook County on a bill in chancery filed by the appellant in that Court November 12,1906, for the foreclosure of a certain trust deed from one Thomas Butler and wife to M. L. Thackaberry, purporting to secure certain promissory notes to the amount of $6,500 and interest, executed by said Thomas Butler and wife, guaranteed by one C. F. Bumann, payable to the order of said Marshall and by said Marshall held and owned. To this bill Thomas Butler, Ellen Butler, Charles F. Bumann, The Chicago Land Loan & Construction Company, Mary Bumann, Pauline McLester, G. W. McLester, her husband, John Wiegman, Henry Frerk, Willis H. Bennett, Jr., A. J. Stinson and N. F. Hand, copartners as Stinson & Hand, The North Side Lumber & Timber Company, Charles ICemintz, J. Charles Schneider, The Novak Mosaic Company, B. F. Novak, the Bonner & Marshall Company, P. F. O’Brien and H. Deming, copartners as P. F. O’Brien Roofing Company, James E. Lili, the Bullard & Gormley Company, the American Crushed Stone Company, Leonard Stradinger, M. L. Thackaberry, Trustee, and Chicago Title So Trust Company, successor in trust, were made defendants.

Except as against Thomas and Ellen Butler and C. F. Bumann and Thackaberry and the Chicago Title & Trust Company, the only allegations of the bill were that the complainant was informed and believed that the defendants claimed some interest in the premises covered by the trust deed as purchasers, mortgagees, judgment creditors, mechanic lien holders, or otherwise, and that said interest, if it existed, was subject to the lien of the complainant under the trust deed. The premises conveyed by the trust deed were the south one-half of Lot Nineteen in Block Five in Cochran’s Addition to Edgewater.

The bill was taken as confessed against Thomas Butler and Ellen Butler, his wife, and against Charles F. Bumann. A personal judgment against them for the amount of the notes is a part of the decree, and it is provided that if, after the proceeds of the sale of the property ordered in the decree have been applied according to the directions of the decree, there is a deficiency in the amount ($8,725) found due to the complainant Marshall, the said Butlers and Charles F. Bumann shall pay the same and the complainant may have execution therefor. The bill was also taken as confessed as against Gr. W. McLester, John Wiegman, B. F. Novak and Chicago Title & Trust Company, and as no interest on their part is recognized or considered by the decree, they require no further mention in this opinion.

The Bullard & Gormley Company, The American Crushed Stone Company and Leonard Stradinger each answered the bill as the recitals of the decree show; but the decree finds that they failed to adduce proofs in the cause, and their “intervening petitions” are dismissed. The record, which is by praecipe, does not disclose the nature of their answers, but in view of the answers of the various defendants, to whom relief was given by the decree, we may assume that they were in the nature of intervening petitions for the establishment of a lien. Their dismissal, which is not complained of, takes the alleged interests of these parties also out of the case.

Nothing of any sort appears in the transcript of the record subsequent to the bill concerning P. F. O’Brien and H. F. Deming, nor anything; but an order of default and a vacation of said order concerning Willis H. Bennett, Jr., except as he was complainant in another suit, of which part of the record was produced in evidence. They are therefore not factors in the matter before ns.

M. L. Thackaberry, Pauline McLester, Mary Bumann and the Chicago Land Loan & Construction Company were also defaulted and the bill taken as confessed against them, according to the recitals of an order of court appearing in the transcript under date of May 10, 1907,—a recital repeated in the decree as to all of said parties except the Chicago Land Loan & Construction Company, although as to Pauline McLester the order of May 10, 1907, seems to have been vacated on May 20, 1907. If she availed herself of the leave then given to answer, however, it does not appear in this praecipe record, and the decree negatives it.

The scope of the litigation and the terms of the decree require, however, the statement of the relation of these parties to the transactions involved.

Thackaberry was the trustee in the trust deed foreclosed. Pauline McLester was the person in whom, by mesne conveyances from Thomas Butler to Mary Bumann and from Mary Bumann to Pauline McLester, after the trust deed was executed, the equity of redemption in the property in question rested at the' time of the decree.

The Chicago Land Loan & Construction Company is described in the bill of complaint as “a corporation.” Service of process on it does not appear in the transcript, although the praecipe calls for “process and service.” The order of May 10th, 1910!, before mentioned, recites that it had filed an appearance but failed to answer. The report of the master, to whom the cause was referred during the progress of the litigation, finds that at a certain date “a so-called corporation named the Chicago Land Loan & Construction Company,” began the improvement of Lots 19 and 20 in Block Five in Cochran’s Addition to Edge-water by certain buildings, that the President, Manager and controlling spirit of said “alleged corporation” was C. F. Bumann, and that the said Chicago Land Loan & Construction Company was the beneficial owner of the premises in the trust deed described, being the south half of Lot 19 aforesaid.

The decree describes the Chicago Land Loan & Construction Company as a defendant, and finds that it entered into various contracts hereinafter noted, and that it was the beneficial and equitable owner of the premises described in the bill of complaint, but that for sake of convenience and for the purpose of consummating a loan on said premises, it kept the title first in the name of Thomas Butler and subsequently in the name of Mary F. Bumann. The decree does not describe the Company as “a corporation,” and the evidence shows, as we read it, that there was never an incorporation of the “Chicago Land Loan & Construction Company,” but that this was the style under which the defendant, Charles F. Bumann, did the business involved in this litigation.

The other defendants were Henry Frerk, A. J. Stinson and M. F. Hand, copartners as Stinson & Hand, the North Side Lumber & Timber Company, Charles Kemnitz and J. C. Schneider, copartners as Kemnitz & Schneider, the Novak Mosaic Company, the Bonner & Marshall Company and James E. Lili. Each of these individuals and copartnerships filed an answer to the bill, setting up a mechanic’s or material man’s lien on the premises in question superior to that of' the complainant under his trust deed. Each of the answers was in the nature of a cross-bill or intervening petition, and asked that the lien which it set forth should be declared and enforced. All but the answer or petition of Frerk asserted that at the time of the contract to furnish material or labor bv the defending petitioner, “the defendant Chicago Land Loan & Construction Company, a corporation, was, as beneficial owner and with the consent of Mary Bumann, improving the premises described in the bill; that the title to said premises stood in the name of Mary Bumann, but as a matter of fact said premises actually and equitably belonged to said Chicago Land Loan & Construction Company, and that said Company placed and maintained the title in said Mary Bumann for its sole use and benefit.”

The ‘ ‘ answer and intervening petition and cross-bill” of Henry Frerk, as he denominates his pleading, asserts that at the date of his contract Mary Bumann was the owner of the premises, and that “with the knowledge, permission and authority of the complainant she was engaged in the- construction of a certain building on said land, having for her agent one Charles F. Bumann, whom she had authorized and permitted to act for her,” and who made a.contract for building material with said Frerk. This petition does not mention the Chicago Land Loan & Construction Company.

The decree after finding as before stated, that there is due the complainant $8,725 and that he has a subsisting lien for said amount on the premises described in the bill of complaint, finds that said lien is subject to the respective liens of the defendant petitioners before named “as hereinafter set forth;” that Stinson and Hand have such a lien for lumber and mill work to the amount of $504.10, with interest from September 14, 1906; that Kemnitz and Schneider have a lien for brick to the amount of $410.38, with interest from June 1, 1906; that the North Side Lumber & Timber Company has a lien for lumber to the amount of $148.04 with interest from July 10, 1906; that Bonner & Marshall have a lien for brick and other material to the amount of $18.53 with interest from June 14,1906; that James E. Lili has a lien for building materials to the amount of $110.17; that Henry Frerk has a lien for building materials to the amount of $108.55 with interest from July 3,1906; and that the Novak Mosaic Company has a lien for labor and materials to the amount of $57.50.

After the finding before named as to the beneficial and legal ownership of the premises described in the hill of complaint, the decree proceeds to find that each of the lien claimants within four months after the completion of th'e respective contracts filed statements of the lien in the clerk’s office of the Circuit Court of Cook County, and that “the lien of the mechanic’s claimants are prior and paramount liens upon the improvements erected upon the premises described in the decree, and that the lien of Frank Marshall, complainant, is a prior and paramount lien upon the land;” that the value of the whole property is $6,800, of which the value of the land is 15/68 or $1,500 and of the improvements 53/68 or $5,300.

The decree proceeds:

“The court therefore finds that in the event of the sale of the premises herein involved the amount realized by such sale .shall be divided and applied as follows :

1st. Toward the payment of all costs due the officers of this court.

2nd. 15/68 of the amount thus realized from the said sale shall be applied toward the payment of the costs of said complainant and the amount found by this decree to be due the said complainant, and if the same is sufficient to pay the costs and the amount due the said complainant in full and there should remain any surplus, then the surplus, if any, should be paid to the defendant Pauline McLester.

3rd. 53/68 of the amount realized from the sale of the premises directed to be sold by this decree, if the same shall be sold, shall be applied pro rata in payment of costs of the respective lien claimants and then to the payment pro rata of the amount found to be due the respective lien claimants, and in the event that the same is sufficient to pay the costs and the amounts due in full and there should be any surplus, then the surplus, if any, should be paid to the defendant Pauline McLester. ’ ’

The decree then in the usual terms orders the sale of said property by a master and the distribution of the proceeds in accordance with the decree unless Thomas Butler and Ella Butler, or some of the defendants, within three days pay to the complainant $8,725 and to the various lien claimants the amounts respectively found due them.

It is difficult to obtain a clear idea from the assignments of error exactly what is and what is not complained of in the decree, but it is evident the complainant Marshall, who is the appellant, contends that each and every one of the findings and orders in favor of the mechanic lien claimants is incorrect and that in each case the “petition” contained in the “answer” of said lien claimant should have been dismissed.

Although the various claims are treated and have been discussed in the printed oral arguments to a great extent separately, most of the objections made to the order in favor of any one are urged to the orders in favor of the others. There are some exceptions to this, but the consideration of the decree, so far as it is in favor of any one of the defendants o.r intervening petitioners, will practically serve for the disposition of the others as well.

But before stating the circumstances concerning the original transaction0out of which both the claims for liens on the property covered by the trust deed, and the objections thereto urged by appellant in his arguments sprang, we must advert to a patent and obvious error on the face of the decree, which requires its modification in a most material point, even if it can, as so modified, be affirmed. It is covered by the general assignment of error, and we called attention to it during the oral argument, although it does not seem to be mentioned in the briefs.

The decree, which finds that the value of the land without the improvements is 15/68 and the value of the improvements without the land 53/68 of the value of the entire property taken together, and that while the mortgage lien and the mechanics’ liens are each and all liens on the entire property, the mortgage lien is prior as to land and the mechanics’ liens prior as to improvements, also finds, first, that 15/68 of the amount realized on a sale of the entire property shall be applied to the mortgage lien, and if that mortgage lien is satisfied by less, then the surplus of said 15/68 shall be paid to Pauline McLester, the holder of the equity of redemption:

This is correct enough, for the amount of the mortgage lien is more than $8,725, and the amount of the mechanics’ liens without interest and costs only' $1,357.57. It is therefore manifest that if 15/68 of the amount realized on a sale would more than satisfy the mortgage lien, 53/68 would more than satisfy the mechanics ’ liens. But the decree also finds, secondly, that 53/68 of the amount realized shall be applied to the mechanics’ liens, and if it more than satisfies them, the surplus of this 53/68 shall also be paid to Pauline McLester. This is manifestly wrong, for it certainly does not follow that if the property sold for a sum of which 53/68 was greater than $1,357.57, 15/68 of said sum would be as much as $8,725.

If the property sold, for example, for the sum found by the decree to be its value, $6,800, under this order of the decree Marshall, the complainant, would vet $1,500, leaving a deficit in his claim of more than $7,225, the lien claimants would get their claims in full, and Pauline McLester would get approximately $3,900. The error and injustice of this are manifest. The decree should provide that after the mechanic lien claimants are paid in full out of 53/68 of the amount for which the premises are sold, any surplus should be first applied to make up any deficiency in the complainant’s mortgage claim after the 15/68 was credited, and onlv after that was satisfied in full should the surplus, if any, go to Pauline McLester. The error is too obvious to need further mention. We turn to the mechanic lien claims and the circumstances from which they arose.

The wife of the complainant Marshall owned, of at least held, the title to Lots 19 and 20 in Block Five in Cochran’s Addition to Edgewater. These lots togetlier have a frontage of one hundred feet on a street in Chicago. Lot 20 lies north of Lot 19.

Mrs. Marshall and her husband, the complainant, under date of February 14,1906, entered into a written agreement with one Charles F. Bumann, who seems to have been “a plunger” in real estate and building operations, by which it was recited that Bumann desired to purchase these two lots .and agreed that the Marshalls should sell them to him for $6,500, one thousand dollars to be paid on or before six months from date, one thousand dollars on or before one year from date, and four thousand five hundred dollars on or before two years from date.

This purchase price of $6,500' for the entire property was all to be secured by a first mortgage on the south 25 feet of the premises only—that is, on the south half of Lot 19, but said south half of Lot 19 was to have placed upon it and consequently subjected to the mortgage a “two flat” building. No further specifications of the nature of value of the building was made by the contract. It was, however, provided, that each 25 feet of the premises—that is, the north half of Lot 20, the south half of Lot 20 and the north half of Lot 19—should, as well as the south half of Lot 19, be similarly improved by a “two flat” house, and that building operations should be begun within fifteen days from the date of the contract.

The following provisions are a part of the contract:

“It is further agreed that on the premises so mortgaged as above stated all liens of every name, nature and description shall be removed at or before the delivery of the title above named.
“It is further agreed that this contract shall be put in escrow, together with the deed, mortgage and not^s securing said sum of sixty-five hundred dollars ($6,500) with M. L. Thackaberry, to be by him held until the terms of this agreement shall have been consummated. ’ ’

If these provisions were inserted in good faith and had been carried out in good faith, they would have been sufficient for the protection of the complainant, to whom alone the notes ran.

Perhaps Marshall was of the opinion that they would be so carried out. This would have required, however, resources in cash or credit which Bumann evidently did not have.

Lots 19 and 20 were conveyed by the complainant and his wife to one Thomas Butler by a deed dated the same day as the contract, and acknowledged on the next day; and the notes provided for, and a trust deed from Thomas Butler and Ellen Butler, his wife, to Thackaberry on the south half of Lot 19 to secure them were also executed under the same date of February 14, 1906. The notes were signed by Thomas Butler and Ellen Butler and guarantied by indorsement by Charles F. Bumann. The trust deed was acknowledged on February 21, 1906. One week afterward, on February 28, 1906-, the deed from the Marshalls to Butler and the trust deed from the Butlers to Thackaberry were placed on record. This was certainly in direct violation of the spirit and apparent intention of the agreement that they were to be held by Thackaberry in escrow until all liens should be removed, fo.r although there were at that time perhaps no liens on the property, an application had been made to mortgage brokers by “Thos. Butler by C. F. Bumann” for a building loan of $4,250 on each of the three other parcels of 25 feet in Lots 191 and 20. These loans were made, and it is impossible to resist the conclusion from a consideration of all the evidence in this regard, that the scheme so far as Bumann and Thackaberry were concerned, was to secure money enough on these three loans to erect, and free from liens, four instead of three buildings, one of which should be on the south half of Lot 19 and be covered by the trust deed to Thackaberry for the benefit of complainant.

Butler was only the representative of Bumann and a dummy in the transaction. Thackaberry was to all appearance the agent and attorney of both Marshall and Bumann. He engineered the whole transaction. Whether it was with the actual and expressed consent and approval of Marshall that the deeds were put on record and the mortgages on the north 75 feet of the premises made possible, does not appear; but Thackaberry was not only Marshall’s attorney in the inception of these matters, but in the foreclosure of the trust deed and the contentions over the mechanics’ liens. It is by no means improbable, it seems to us, that in reliance on the expectation that his attorney, Thackaberry, would bring the matter to a satisfactory conclusion, he viewed the transaction as one in which he could sell the Lots 19 and 20 for a sum somewhat more than the evidence in the record would seem to show was their market value. This would furnish a motive for an acquiescence in the arrangement, which would otherwise be inexplicable. However, this may be, we think he must be held affected with notice of all that went on through his agent and attorney, Thackaberry, who was undoubtedly acquainted with it.

We hold from the evidence that Bumann was at all times the beneficial owner of the property after the conveyance by the Marshalls to Butler. There is much in the record concerning the “alleged” and the “so-called” corporation, “The Chicago Land Loan & Construction Company.” As before stated, all the answers or “interveningpetitions” except Frerk’s, speak of the contracts under which liens are respectively claimed as made with this “Company,” and call it a corporation, and the decree, without describing it as a corporation, finds that it was the beneficial and equitable owner of the premises sought to be foreclosed.

The arguments of counsel in the case and the witness Meek speak of the Company as a copartnership composed of Bumann and one Coleman. We find the entire evidence, taken together, however, fairly to establish that the “Company” was neither a corporation nor a copartnership, but a name and style assumed for purposes of his own by Bumann to do this business under, Bumann has decamped. The money raised on the “Straus” mortgages.on the three 25-foot parcels to the north of the premises under foreclosure here, was not sufficient to carry out the scheme. The equity of redemption of the south half of Lot 19 was first conveyed by the Butlers to Mary F. Bumann, a sister of C. F. Bumann, for a nominal consideration (in April, 1906) and then, with the remainder of Lots 19 and 20, by Mary F. Bumann to Pauline McLester for a like nominal consideration (Sept. 5, 1906).

Holding as we do, that the Chicago Land, Loan & Construction Company was Charles F. Bumann, all the objections made to the decree by the appellant which depend on the position that the various defending petitioners were actually subcontractors, disappear. Such is the objection based on a failure to give notices or file claims within sixty days from the completion of the contracts.

The various claimants either proved that they filed their statements of claim in the Circuit Court Clerk’s office within four months of the date of final delivery of their material and completion of their contract, as found by the master, or as in the case of the Novak Mosaic Company, (which omitted to prove the filing of the statement of claim) they filed their intervening petition within four months of such completion. Stinson & Hand did both. The error in the finding of the decree (without evidence of it) that the Novak Mosaic Company filed its claim like the others in the clerk’s office of the' Circuit Court, an error which was not pointed out in the objections to the master’s report, becomes entirely immaterial and harmless in this view, for either bringing the proceedings or filing the claim within four months defeats the limitation against an original contractor.

The appellant, however, maintains that if the claimants are to be considered as original contractors, their statements of claim as filed and their pleadings are inconsistent with that view—so inaccurate and erroneous indeed as, by themselves, to render the order in the decree in their favor erroneous. The decree moreover is in that case erroneous, it is contended, in finding the Chicago Land Loan & Construction Company the beneficial owner. These are technical objections, not justified under the spirit of the Act, which declares itself to be a remedial Act to be liberally construed.

We think that the reasoning of the opinion of the Supreme Court both in Springer v. Kroeschel, 161 Ill. 358, and City of Salem v. Lane & Bodley Co., 189 Ill. 594, and the construction given to the Act in those cases, are applicable to the one at bar.

As for various points made by the appellant on the weight of evidence being contrary to the findings of the master and the decree, careful investigation of the record fails to show us any justification for our interfering with the decree, except as noted. We do not think the amounts for which the south half of Lot 19 is held subject to the lien are incorrectly found, nor that there is any ground to demand, as complainant terms it, “a marshaling of assets.” Neither the phrase nor the doctrine is applicable to any facts in the present controversy, we think.

But as the flagrant- error in the decree which we first noted demands its serious modification, we must adjudge the costs of this appeal against the appellee and in favor of appellant.

The decree will be modified by the substitution in the decree for these words:

“3rd. 53/68 of the amount realized from the sale' of the premises directed to be sold by this decree, if the same shall be sold, shall be applied pro rata in payment of costs of the respective lien claimants, and then to the payment pro .rata of the amount found to be due the respective lien claimants and in the event that the same is sufficient to pay the costs and the amounts due in full and there should he any surplus, then the' surplus, if any, should be paid to the defendant Pauline McLester,”

The following:

“3rd. 53/68 of the amount realized from the sale of the premises directed to be sold by this decree, if the same shall be sold, shall be applied pro rata in payment of the costs due to the respective lien claimants, and then to the payment pro rata of the amounts found to be due the respective lien claimants, and in the event that the same is sufficient to pay said costs and said amounts due the respective lien claimants in full, then the surplus, if any, shall be applied first towards the payment of any part of the sum found due the complainant herein which 15/68 of the amount realized from the sale has left unpaid, and in the event that said surplus should fully satisfy said sum, if any, so found still due the complainant, and there should still be a remainder, (but only in said event) said remainder shall be paid to the defendant Pauline McLester.”

The decree as thus modified will be affirmed.

Affirmed.