text:
    Chicago Faucet Company, Appellee, v. 839 Lake Street Building Corporation, Appellant.
    Gen. No. 38,431.
    Opinion filed April 22, 1936.

      Levy & Sohmetterer, of Chicago, for appellant.
    Brelin, Britton & Landon, of Chicago, for appellee; Floyd E. Britton, of counsel.
   Mr. Justice Hebel delivered

the opinion .of the court.

This is an appeal from an order dismissing defendant’s petition in the nature of a writ of error coram nobis to set aside a judgment against the defendant for $1,444.14, in favor of the plaintiff, entered by the court on January 4, 1935, after an order of default was entered by the court for want of appearance by the defendant.

Suit was begun on January 26, 1933, by the Chicago Faucet Company, a corporation, as plaintiff, by the filing of a praecipe requesting the clerk of the circuit court of Cook county to issue a summons to the defendant in a plea of trespass on the case on promises, directing the sheriff of Cook county to execute and make returnable to the February, 1933, term of court. .Summons was issued by the clerk, and the return of the sheriff shows service February 14, 1933, on Mrs. Alberta Taggart, as manager and agent of said corporation, and that the president of the corporation was not found in Cook county. Thereafter, on March 8, 1933, a declaration was filed with the clerk of the court, entitled The Chicago Faucet Company, a corporation, v. 839 Lake Street Building Corporation, a corporation, wherein The Chicago Faucet Company complains of 839 Lake Street Building Corporation on a plea of trespass on the case on promises.

The declaration alleges that the defendant, on March 6, 1929, purchased from The Chicago Faucet Company, a corporation, certain plumbing and bathroom fixtures, at a price of $1,444.14, and that the same were delivered to the defendant on April 30, 1929.

The defendant filed a petition to vacate the default judgment, alleging the filing of the suit on January 26, 1933, under the name of Chicago Faucet Company, a corporation; the filing of the praecipe and the issuance of summons and alleged service, and the filing of the declaration on March 8, 1933, under the name of The Chicago Faucet Company, a corporation, and that there is a fatal variance between the praecipe, summons, declaration, and judgment entered by default.

The petition further states that Mrs. Alberta Taggart was not an agent or manager of the defendant at the time of the alleged service of the summons, and that no attempt was made by the sheriff to serve the president of the corporation, and defendant denies indebtedness of $1,444.14 or any other sum claimed to be due the plaintiff.

The petition moves that the judgment be vacated and suit dismissed because of variance and because of the nonexistence of a corporation by the name of Chicago Faucet Company, and for want of a proper declaration. Thereafter a written motion was filed by The Chicago Faucet Company, a corporation, for the reasons stated therein, which motion was allowed.

The purpose of this proceeding by the defendant is to correct an error of fact, that is, the alleged variance between the summons and the declaration as to the exact corporate name of the plaintiff. The variance complained of appears on the face of the record, and such error cannot be taken advantage of by a motion in the nature of a writ of error coram nobis under sec. 72 of the Practice Act, Ill. State Bar Stats. 1935, ch. 110, IT 200.

Among the several decisions which hold that an error of fact that may be assigned under a writ of error coram nobis, or by motion under sec. 89 of the Practice Act, Ill. State Bar Stats. 1935, ch. 110, TT 217, must be some fact unknown to the court at the time the judgment was rendered, and one which would. have precluded the rendition of the judgment, is the case of Chapman v. North American Life Ins. Co., 292 Ill. 179, wherein the court said:

“At common law the writ of error coram nobis could be sued out of the same court when a judgment at law was rendered to reverse the judgment, and before the same judge who rendered the judgment, for an error of fact' that might be brought to the knowledge of the court that would be sufficient, of itself, to defeat the judgment. Such error of fact which may be assigned under such writ, or by motion under section 89 of our Practice Act, which is controlled by similar rules, must be some fact unknown to the court at the time judgment was rendered, as well as, one which would have precluded the rendition of the judgment. ’ ’

The defendant contends that there was a misnomer by the plaintiff in its statement of facts, and because of the error, which is apparent on the face of the record, the court should have set aside the judgment entered. After term time the court cannot set aside a judgment for an error appearing on the face of the record, and after the term has ended in which judgment was rendered, the court cannot correct the error. Chapman v. North American Life Ins. Co., 292 Ill. 179. For that reason the defendant is not in a position at this time to question the variance of which it complains.

The defendant also contends that by reason of its being a corporation the return of the sheriff showing service upon an alleged agent may be overcome by evidence that the president of the corporation was in the county and available for service. This point has been passed upon in the case of Chapman v. North American Life Ins. Co., supra, wherein the court said:

“The doctrine prevails in this State that the return of the sheriff on the summons, where that return is in harmony with the findings of the court in its judgment that the defendant was duly served, cannot be contradicted after the term of court has ended in which judgment was rendered, except in rare instances, as where the sheriff is sued for making a false return, which is one of his remedies where the defendant is damaged by a false return. (Hunter v. Stoneburner, 92 Ill. 75; Lancaster v. Snow, 184 id. 534.) In this State, before judgment is taken the sheriff’s return can be contradicted when a false return is taken advantage of by a plea in abatement, or, more properly speaking, by a plea to the jurisdiction of the court of the person of the defendant . . . , and after the term has ended in which judgment was rendered, the sheriff’s return is conclusive as between the parties and cannot be taken advantage of by error coram nobis unless such false return has been procured by the fraud of the plaintiff.” In the instant case no claim is made that would justify this court in setting aside the judgment on the ground of fraud.

Plaintiff contends that the defendant does not show a defense to this action. While defense is not controlling, we believe what we have stated in our opinion on the question of variance and the service of summons is controlling and that the trial court was fully justified in sustaining plaintiff’s motion to dismiss defendant’s petition in the nature of a writ of coram nobis to vacate and set aside .the judgment against the defendant. The order is accordingly affirmed.

Order affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    The People of the State of Illinois ex rel. John L. Oberhart, Appellee, v. Martin P. Durkin et al., Appellants.
    Gen. No. 38,450.
    Opinion filed April 22, 1936.
    Otto Kerner, Attorney General, for appellants; George 0. McCarthy, Assistant Attorney General, of counsel.
    Prescott, Burroughs & Taylor, of Chicago, for appellee ; Patrick B. Prescott, Jr., of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

The respondents are here on appeal from a judgment entered in a mandamus proceeding wherein the court makes certain findings and directs that the respondents restore the relator to the position of Assistant Superintendent of Free Employment, Department of Labor of the State of Illinois, at Chicago, Illinois, and place the relator’s name upon the payrolls of the State of Illinois and pay him his salary from January 26,1933, until he is retired or removed as provided by law.

The petition was filed on July 24, 1933, in which it is alleged that the relator is a citizen of the United States and has been a resident of the City of Chicago for many years; that for 15 years and upwards last past he has been an employee in the State Civil Service as Assistant Superintendent of Free Employment in the Department of Labor of the State of Ulinois; that on January 26, 1933, he was wrongfully and illegally discharged from said position and from said Department of Labor and from the Civil Service of said State, upon the written order of Barney Cohen, the then Director of Labor of said State of Illinois, without just cause for such discharge or removal set forth in writing; or without any charges whatsoever made against him; that on January 26, 1933, the relator received a letter by mail wherein it was stated:

“January 24, 1933.
“Dear Mr. Oberhart:
“This is to advise you that your services as Department Superintendent in the Chicago Free Employment Office will terminate at the close of official business Thursday, January 26,1933.
“Tours very truly,
Barney Cohen,
Director of Labor.”

That from that time thenceforth no reason has been given regarding his dismissal from his said employment, except the letter above quoted.

The petition further charges that relator from January 26, 1933, to date has been dropped from the payrolls of the Department of Labor; his name removed therefrom; that he has been prohibited from working in his accustomed place as Assistant Superintendent of Employment, at Chicago, despite his willingness and ability to perform his duties; that he has made demand on the said Department of Labor to restore him to his former position of Assistant Superintendent of Free Employment in said Department of Labor because he was a civil service employee of said State of Illinois; that he could be removed only according to law.

The petition further charges that the relator demanded of the Civil Service Commission of the State of Illinois that he be restored, and received a letter purporting to show that relator was not in the civil service of said State at the time of his dismissal; that he has been refused reinstatement to his former position by the Director of Labor of Illinois and by the Civil Service Commission; that relator has not received payment of the salary due and owing him from the date of his discharge, as provided for by the general assembly of the State covering the tenure-of employment of relator as a civil service employee of said State.

The petition further charges that the dismissal of relator was contrary to the Statutes of Illinois, and is contrary to Ill. State Bar Stats. 1935, ch. 105, if 394 (sec. 12 of ch. 24%, Smith-Hurd Rev. Stats. 1931).

It is further alleged that relator entered the Department of Labor on December 1, 1917, as a temporary employee, assigned to act as Assistant Superintendent of Free Employment in the Illinois Free Employment offices in Chicago; that on January 18, 1919, he took a civil service examination for the position of Assistant Superintendent of Free Employment of Illinois, and passed the same; that he was placed upon the civil service eligible list for the position of Assistant Superintendent of Free Employment, Department of Labor of said State; that he was certified for the position by the Civil Service Commission, and on Nov. 7, 1919, he was appointed to that position by the then Director of Labor of Illinois; that he entered upon the duties of the position, and performed the duties faithfully and efficiently, and has continued in such employment since November 7, 1919.

For want of sendee upon the respondents named in the petition of the relator, no appearance was entered until June 20,1934, when a general demurrer was filed for the respondents. Thereafter the petitioner took no steps in the cause until March 22, 1935, on which date leave was granted petitioner to amend the petition on its face by substituting certain parties as respondents, and it was ordered that the general demurrer theretofore filed stand as the demurrer of all the respondents whether served with summons or not. The cause came on for hearing on the demurrer, which was overruled, and on June 14,1935, the final order and judgment was entered by the court directing that the writ of mandamus issue as prayed for.

The first question we will consider is the contention of the respondents that the material allegations of the petition are mostly conclusions; that the unexplained delay of petitioner in filing the petition, as well as service of summons upon the respondents, is sufficient to bar the alleged cause of action on the ground of laches.

From the face of this petition it appears that it was filed on July 24, 1933, and the appearance of these respondents was not properly filed, until June 20,1934, when a general demurrer was filed on their behalf.

The relator in reply to the contention of the respondents questions the right of the respondents, who voluntarily entered their general appearance, to put the case at issue, and states that by their appearance they waived any claim of laches, because they should have moved to abate the summons and dismiss the petition.

As we understand the law, the question of laches or limitations may be raised if appearing on the face of the pleading questioned by demurrer. As we have indicated, there was a lapse of time between the filing of the petition on July 24, 1933, and the demurrer filed by the respondents and passed upon by the court on June 14, 1935. From the plea of the relator it is clear that this lapse of time was caused by failure to bring the respondents into court by service of summons. They were not in court until their appearance was entered by general demurrer filed on June 20, 1934, and they were not included as all the respondents until March 22, 1935, after the relator was granted leave to amend his petition and the order of the court that the general demurrer stand as to all the respondents whether served with summons or not.

The relief prayed for is not granted as a matter of right, but is largely within the discretion of the court, and the relator in exercising his right to question his dismissal as a civil service employee should do so within a reasonable time by filing his petition and by promptly putting his case at issue, and not delay as alleged in this case, and permit a temporary employee to be appointed in his place and receive the salary in payment of such services.

From an examination of the record it appears that the court directed the reinstatement of relator by the respondents, with the further direction that they be caused to pay to him a sum of money equal to the amount due him out of the monies appropriated by the general assembly as salary or emolument of said position as Assistant Superintendent of Free Employment, Department of Labor of Illinois, at the rate of $150 per month from the 26th day of January, 1933, thenceforth up to the time when he shall be reinstated in said position.

Where a petitioner, as in the instant case, seeks by a writ of mandamus to be reinstated in a position and to recover compensation for services not performed by him and by reason of his delay permits another person to perform and to be paid for such services, has been considered in the case of Kenneally v. City of Chicago, 220 Ill. 485, wherein the Supreme Court quotes with approval from People ex rel. Young v. Collis, 39 N. Y. S. 698, as follows:

“ ‘Without considering or determining the other questions raised upon this appeal, it seems to us the order appealed from should not have been made by reason of the delay and laches on the part of the relator ‘in demanding reinstatement in the office, from which he had been discharged, and in applying for a mandamus to compel such reinstatement, . . . It is manifestly unfair, where there is disagreement as to the propriety or legality of the discharge, that the relator should lie still, and allow another person to occupy the position from which he has been removed, and draw pay for his services therein, and, after more than four months has elapsed, that he should be allowed to have this remedy by mandamus to be reinstated in office, and recover compensation for services therein, which he has not performed, and which he has for a long time, without objection, permitted another person to perform, and be paid for.’ ”

There is nothing in this record to explain the delay of the relator in moving that the case be put at issue and determined at as early a time as possible. It is to be noted that he was discharged on January 26, 1933, and that he filed his petition on July 24, 1933, so that up to the time the final order was entered in this case the matter was not finally disposed of by the court until June 14, 1935, a period of 29 months; that for this delay he seeks to recover $150 a month for a period of about 29 months, which would amount in the aggregate to the sum of $4,350. The relator seeks to avoid this delay by suggesting his inability to obtain service on these respondents, and that he attempted to avoid this by requesting the respondents’ attorney to enter the appearance of these various parties. It may be that failure of the respondents by their attorney to enter their appearance was rather inconvenient for the relator, but they stood upon their legal rights that they should properly be in court by service of summons. However, there is nothing in the record that would sustain this position of the relator, and the case must be determined upon the record as it appears here in court. It is suggested by these respondents that the court could of its own motion have disposed of the matter for failure of the relator to prosecute said petition with diligence, and in support of their contention cite the case of People v. Burdette, 285 Ill. 48, wherein a petition for a common law writ of certiorari was involved, and the court said:

“We see no escape, under the above authorities, from holding that the relator was guilty of laches in not filing his petition within six months after his discharge. Furthermore, we do not see why defendant in error did not, after his petition was filed, push the hearing to a speedy decision. The petition was filed in the circuit court on March 25, 1915, the return was filed May 18, 1915, and the final order was not entéred quashing the proceedings by the State Civil Service Commission until July 28, 1916, over fourteen months after the filing of said return. The authorities seem to hold that the common law writ of certiorari may be quashed for failure to prosecute it with diligence, even after the return is filed. (6 Cyc. 814; Parman v. School Inspectors, 49 Mich. 63; Shepherd v. Sliker, 31 N. J. L. 432; State v. Superior Court, 46 Wash. 169.) The motion to quash the writ of certiorari was made in the trial court November 25, 1915. Some suggestion has been made as to whether at that late date the trial court could quash the writ. There seems to be no decision in this State on this precise question. The general rule seems to be that the motion to quash the writ may be made and acted upon at any time when the court becomes satisfied that the writ should not have been issued. The dismissal in many of such cases is made by the court of its own motion and without a formal motion of counsel. (4 Ency. of Pl. & Pr. 249; 6 Cyc. 816; 11 Corpus Juris, 188.)” See also Beasley v. Pashea, 267 Ill. App. 434.

We are of the opinion that the delay was not reasonable, and while the demurrer was overruled and the respondents elected to stand by the demurrer, we shall be obliged to reverse the judgment.

For the reasons stated the judgment is reversed and the cause is remanded to the trial court to enter an order not inconsistent with the views expressed in this opinion.

Reversed and remanded.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    Stone’s Beauty Shops, Inc., Appellee, v. Morrison Service Association, Appellant.
    Gen. No. 38,569.

      Opinion filed April 22, 1936.
    Yale & Yale, of Chicago, for appellant..
    Schuyler, Weinpeld & Hennessy, of Chicago, for appellee; Howard D. Moses, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This action was filed in the municipal court of Chicago by the plaintiff to recover from the defendant money in the sum of $3,626.22, which the defendant retained from money collected by it while in charge of and operating plaintiff’s business by virtue of certain notes and a chattel mortgage executed by the plaintiff, which money so retained was without the consent of the plaintiff.

To this action the defendant filed its affidavit of merits, wherein it admits the making of the original agreement by the defendant, and that one Louis Morrison took charge of plaintiff’s business and collected the income and deposited the money in a bank account in the defendant’s bank. It further admits that the plaintiff executed a chattel mortgage conveying all its assets to secure the loan, and admits threatening to foreclose by reason of certain defaults under the terms of the contract as well as of the chattel mortgage, but denies plaintiff protested Louis Morrison’s presence or control in the issuance of checks which were charged to the plaintiff. Defendant denies that plaintiff objected to the payment of salaries of $35 or $50 a week, received by the defendant’s agent Louis Morrison, but admits that they were paid to Louis Morrison, individually, for services performed by him at the request of the plaintiff. Defendant also denies that further and other payments were objected to by the plaintiff.

A jury trial was had and a verdict returned finding the issues for the plaintiff and assessing damages in the sum of $1,800, upon which the court entered judgment, and from which defendant appeals'.

The facts are, substantially, that the plaintiff borrowed $7,500 from the defendant and in consideration therefor executed and delivered to the defendant 11 promissory notes, two for $500 each and nine for $1,000 each, aggregating the sum of $10,000: that the notes were payable one each month for 11 months, and a chattel mortgage was given upon plaintiff’s chattels to secure the payment of said loan; that when the first note was about to become due, the defendant took possession of plaintiff’s property and business and proceeded to handle the funds thereof by placing its representative Louis Morrison at plaintiff’s place of business; that all funds collected from plaintiff’s business were deposited in the bank account of the defendant. Upon this fund, checks were drawn by Harry Morrison, an agent of the defendant, in the payment of certain items charged against the plaintiff in the operation of its business, and among other payments made out of plaintiff’s funds was the sum of $812.50 for divers commissions, and also money drawn by Louis Morrison for salary and other items charged against the plaintiff’s account.

Plaintiff company, a corporation, operated 29 beauty shops and also manufactured supplies for use in beauty shops. In the year 1932, a petition in bankruptcy was filed against the company, and shortly thereafter a composition agreement with the creditors of the corporation was entered into, providing for the payment by the debtor, this plaintiff, of the sum of $7,500 in cash and the balance due the creditors in notes in full discharge of its various debts. Plaintiff not having sufficient funds on hand, Louis Stone, plaintiff’s manager, applied to the defendant for a loan, and by agreement the defendant loaned to the plaintiff the sum of $7,500 for which the plaintiff company executed and delivered to the defendant 11 notes, hereinabove referred to, aggregating the sum of $10,000. The $7,500 was paid by the defendant directly to the clerk of the federal court to satisfy the composition agreement entered into between the plaintiff company and the creditors of the plaintiff. Thereafter an additional loan was negotiated and entered into with the defendant upon the same terms as the notes secured by chattel mortgage. Plaintiff experienced some delay in getting this property back from the Receiver in Bankruptcy, and before it was well started in business the first of the mortgage notes became due. A few days before the note was actually due and before there had been any actual default, the elder Morrison came to plaintiff’s office and announced that in view of the impending default, “he was going to run the place from that time on.” It is claimed over the protest of plaintiff’s manager, Louis Stone, defendant insisted on putting in his younger son, Louis Morrison, to “watch the running of the business.” When Morrison took possession of the assets and business of the plaintiff company Harry Morrison, the treasurer of this company was appointed to handle all the money of the plaintiff company, sign all checks and pay all bills. From that time on, the Morrisons operated plaintiff’s business and opened a bank account in the name of their own company and deposited plaintiff’s money therein, and from this fund they paid out, on checks drawn by Harry Morrison, such sums as they determined should be paid, and thereafter paid to Louis Morrison, who was in charge of the business, $35 at first, and later $50 a week as salary while acting as a representative of the defendant in the control of the business. The total salary paid to Louis Morrison aggregated $2,561.67.

In October, 1933, the plaintiff negotiated a new loan of $1,980 from the defendant, for which the plaintiff executed its note for $2,500. . Subsequently the plaintiff negotiated a loan from another company and paid off these notes.

The plaintiff contends that the defendant charged unlawful commissions and expenses on the loans, and when the plaintiff paid the two notes it settled any dispute it had with the defendant as to those two notes, but that did not involve any transactions under the first loan. While the defendant was in sole control of the funds it paid out such amounts as it saw fit, and the amount of the money loaned to the plaintiff was $9,480 for about a year. From the evidence it appears that the defendant charged and collected from the plaintiff for principal, interest, commissions and other charges, the sum of $15,976.22.

From an examination of the record the evidence called to our attention by the parties to this litigation is conflicting. The defendant argues that the plaintiff consented to the payment of the items complained of, and that the money so used was with full knowledge of the plaintiff and without objection by it until the filing of this suit in the municipal court.

It is apparent from the affidavit of merits filed by the defendant that possession of plaintiff’s business was taken by defendant after threatening the plaintiff with foreclosure because of defaults under the terms of the chattel mortgage. From the terms of the contract referred to by the defendant, and also the chattel mortgage, we are to determine the rights of the parties. The important question to be considered is whether the amounts retained by the defendant from the collection of income from plaintiff’s business and received" by the defendant can be recovered in this action by reason of the threats to foreclose the chattel mortgage. Plaintiff’s position is that the money was unlawfully appropriated by the defendant, and therefore the plaintiff is entitled to recover the amount so misappropriated.

The general rule of law is that the mere threat of a party to exercise a legal right acquired by virtue of a contract is not in and of itself actionable. Courts of review in passing upon the question of a threat to foreclose a trust deed in which the party has a legal right to foreclose' have held that this does not constitute duress as to the execution of another note and trust deed to prevent foreclosure. Hart v. Strong, 183 Ill. 349. To the same general effect is the case of Helmick v. Carter, 171 Ill. App. 25. Upon this question the court said:

“It has been repeatedly held by the Supreme Courts of this and other states that the payment of money to prevent the bringing of legal action against a party upon a subsisting claim is not duress, and that a payment made to prevent such legal action is a voluntary payment.”

To determine whether or not a cause of action existed, it is necessary to decide whether defendant, acting as it did, deprived the plaintiff of funds to which it had a right, and whether upon a demand by the plaintiff of a return of these funds the defendant failed to meet this demand.

The defendant in this case was in charge of the business of the plaintiff for several months. Statements were made each month under the direction of the plaintiff showing income and disbursements, which included money received and disbursed by the defendant. Therefore, from the facts as we -view them, the plaintiff is chargeable with knowledge of the items contained not alone in the monthly statements, but also in the books of account kept by plaintiff’s employees.

The plaintiff further contends that the payment of certain money to the defendant company for the extension of defaulted notes was excessive. It appears from the evidence that this was done with the knowledge of the plaintiff and upon advice of its counsel at the time of the extension. Finally, the dealings between the plaintiff and the defendant were adjusted by the payment of the balance of the loan, and this only after a deduction was agreed to by the defendant of $150 upon the amount then due from the plaintiff. As a result of the agreement the chattel mortgage and notes in question, together with application for loans, were turned over to Mr. Friede of the First United Finance Company, and the sum due the defendant was received by it from this company.

During the negotiations for a final adjustment of plaintiff’s account, it was advised by an attorney; had full knowledge of all the facts, and consented to the payment of the money to the defendant. No claim is made that the plaintiff was misled by fraudulent statements or misrepresentations, and the Appellate Court in the case of Diebold Safe & Lock Co. v. Barnes, 53 Ill. App. 144, an action in assumpsit for goods sold and delivered, said upon a like question: “But we decline a discussion of the technicalities of these doctrines because we are of opinion that a simple solution of the question is to be found in the fact of an actual settlement of this controversy by the parties to it, deliberately made, without fraud or misrepresentation on the one side, or ignorance or misunderstanding of any material fact on the other. Whether it operated against plaintiff in error by release, estoppel or waiver technically, is unimportant to determine. If agreed upon, and executed with full knowledge of the situation and circumstances, possessed on both sides, it ought to end the matter, as between them. It operates substantially, in almost every way by which a further claim on either side against the other could be barred.”

Several other objections are made, the principal of which is that where there are several distinct demands in a statement of claim, it is error for .the court to reT fuse a request to direct the jury to find a separate verdict upon each demand. We cannot agree that the court erred in this respect. The transactions between the parties naturally resulted in several and divers items growing out of a single transaction. It would surely clutter up the record of the court if the court should direct that the jury return a separate verdict as to each item, and this fact is self-evident when, as in this case, it appears that the defendant presented 25 special interrogatories to be submitted to the jury for" an answer of “Yes” or “No,”.. The court.did not err in its refusal.

It will not be necessary to consider the other objections in view of the fact that a further trial must be had.

The action hinges largely upon a question of fact. While this court hesitates to reverse a judgment based upon the verdict of a jury, still where it is apparent that the theory of the defendant was not clearly presented to the jury, the cause should be remanded for a new trial. The court will not enter a judgment which is not consistent with the theory of the parties. Either the plaintiff was entitled to the full amount of the claim sued for, or the verdict should have been for the defendant. Galomopoulos v. Petropoulos, 147 Ill. App. 1.

The cause must be reversed and remanded for another trial, and it is so ordered.

Judgment reversed and cause remanded.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Jim Lewis, Plaintiff in Error.
    Gen. No. 38,622.

      Opinion filed April 22, 1936.
    Rehearing denied May 5, 1936.
    Andalman, Shamberg & Topper, of Chicago, for plaintiff in error; Maxwell N. Andalman, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error.; Edward E. Wilson, John T. Gallagher and Richard H. Devine, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

Plaintiff in error is the defendant in the case entitled People of the State of Illinois v. Jim Lewis, wherein the defendant is charged in an information filed on March 21,1935, under oath, as follows:

“W. S. Smith informs the court that Jim Lewis on to-wit, March 20, 1935, at Chicago did then and there unlawfully sell the return portion of a non transferable New York Central Railroad ticket, Chicago to New York, form S-L. S. T. 20453 for $25.00; without having authority to do so by the owner or owners of the New York Central Railroad Co.; or without having a certificate of authority duly attested by the corporate seal of the owner of the said railroad company, or without having posted on exhibition, or without having exhibited to the complainant said certificate of his authority, to sell, as required in Chapter 114, Sections 105, 106, 107 and 108 of the Revised Statutes of Illinois, 1933, contrary to the statute in such case provided. (Signed) William S. Smith.”

Upon a trial the jury returned a verdict of guilty, and the court, after overruling defendant’s motions for a new trial and in arrest of judgment, entered a judgment on the verdict finding the defendant guilty and fixing his punishment at imprisonment for a period of 60 days in the House of Correction.

This court will first consider defendant’s suggestion that the information, the basis of this action, charges more than one criminal offense in one paragraph and is objectionable on the ground of duplicity; and that the court erred in refusing to quash this information.

This statutory act appears as ch. 114 of the Ill. State Bar Stats. 1935, and the provisions of this act are stated in sec. 1, sec. 2, sec. 3 and sec. 4. The act is generally known as the Anti-Scalping Law of this State. The first section provides, substantially, that it shall be the duty of owners of any railroad for the transportation of passengers to provide their agents, who may be authorized by them to sell tickets, with a certificate setting forth the authority of such agent to make such sales.

Sec. 2 provides:

“That it shall not be lawful for any person not possessed of such authority, so evidenced, to sell, barter or transfer, for any consideration whatever, the whole or any part of any ticket or tickets, passes, or other evidences of the holder’s title to travel on any railroad, or steamboat, whether the same be situated, operated or owned within or without the limits of this State.” Ill. State Bar Stats. 1935, ch. 114, fí 175.

Sec. 3 provides the penalty for violation of sec. 2 of the Act.

We must have in mind that averments, however multifarious, will not constitute duplicity in an information when all the matters taken together constitute one connected charge. People v. Israel, 269 Ill. 284. Then again, in passing upon the question called to our attention, unnecessary words or averments will not cause a count to be bad in an information if there are sufficient averments to make the count good, disregarding the unnecessary averments as mere surplus-age. People v. Paisley, 288 Ill. 310. We are of the opinion that the complaint in this case is in proper form to advise the defendant that he was charged with the crime of selling tickets and also that he did not have authority to do so under the act.

This court agrees with the defendant that an indictment or information which charges more than one offense in a paragraph or count thereof is void for duplicity. Such is the general rule, but in this case the information, under discussion charges the defendant in clear language with the crime of selling railroad tickets and also that he did not have authority under the act to sell tickets, and applying the rule applicable to questions of this kind, we are unable to agree with defendant’s counsel that the court erred in denying defendant’s motion that the information be quashed.

Another question has been called to our attention, and that is, that the buyer of this railroad ticket is not named in the information. The gist of the charge is not that title was transferred, but that the defendant sold a ticket without being authorized as provided by statute.

In our opinion it is not necessary to set out in the information the name of the purchaser of the ticket. There are many authorities which hold that where a tavern is operated and alcoholic liquors sold without a license, the name of the purchaser of the liquor is not important, the question being whether the tavern is being operated for the purpose of selling spiritus frumenti without a license. Therefore, by analogy this rule is applicable to the instant case. The defendant is charged with selling a railroad ticket without the consent or authority of the railroad company, and to name the purchaser would be an unnecessary averment and. add nothing to the certainty of the crime charged against the defendant.

The defendant contends that the prosecution was based upon acts of a witness who urged and instigated the perpetration of the offense, and that the accused, Lewis, would not have participated in the sale of the ticket except for the trickery, persuasion and fraud of the witnesses who appeared for the prosecution. Upon this question the Supreme Court of this State in a recent case entitled People v. Ficke, 343 Ill. 367, has clearly indicated the rule to be applied to questions of this kind in these words:

“It is not an instigation or solicitation to crime for an individual or an officer of the law, having reason to believe that another is or others are committing or intending to commit or conspiring to commit criminal offenses, to furnish an opportunity for the commission of the criminal offenses which the persons concerned are committing or intending to commit. If the purpose is, in good faith, to secure evidence against persons guilty of crime and not to induce an innocent person to commit a crime, there is no merit in the claim that the person was entrapped into the commission of the crime and should therefore be relieved of criminal responsibility.” Then again, the court referring to the case of Dennis v. Dennis, 68 Conn. 186, said: “In the case last cited it is said that as to prosecutions for offenses not against individuals but against the public it is no defense to a prosecution for the illegal sale of intoxicating liquors that the sale was made to one who bought not for his own use but to aid in convicting the sellers. ‘It is not the motive of the buyer but the conduct of the seller which is to be considered. ’ ’ ’

The evidence in this case is that the defendant was conducting a ticket office in the Roanoke Tower, at 125 West Madison street, when the witness Smith called and inquired regarding the purchase of a ticket to New York. On March 16, 1935, the defendant exhibited a railroad ticket to William S. Smith, an investigator for the Railway Ticket Protective Bureau, which bureau represented the New York Central, Pennsylvania and B. & 0. Railroads. The nature of the business carried on at that place was indicated by a sign with the words “Roberts Ticket Agency” thereon, and when the witness called at this office he said to the defendant, who was behind the counter, that he would like to go to New York on Thursday or Friday of the following week. The defendant did not have such ticket but exhibited a ticket for a return trip to New York that same day, which would indicate that the agency was selling railroad passenger tickets.

The evidence further shows that on March 20, when this same witness called again at the office, the defendant sold him a New York Central railroad return ticket for $25, and this evidence was corroborated by a witness who also testified he was an investigator for the Railway Ticket Protective Bureau, and was present on the day the ticket was purchased at 125 West Madison street, which is the number of the Roanoke Tower. This the defendant denied and testified that he advised this witness Smith that he knew a man at the Planters Hotel who had a ticket he would like to dispose of, but that he, the defendant, said to him, “I didn’t use tickets at all. I have a little trouble with it. I have been accused of it. I don’t know that I have ever sold any,” and the defendant further testified that Smith called and defendant told him he could have a ticket from this “fellow from the Planters Hotel who was standing there”; that defendant handed Smith the ticket- and received $25, which he testified he gave to the man standing there, and that defendant did not receive any of the money.

These were facts for the jury, and the jury having passed upon them, it is not for this court to question the verdict, unless from all the facts and circumstances in the case there is a reasonable doubt as to the guilt of this defendant.

On the question of entrapment, among the other facts submitted to the jury was that of the sale of this ticket by the defendant to the witness Smith which was for the benefit of the person at the Planters Hotel who purchased it from an authorized agent, and no doubt the jury before returning its verdict took this fact into consideration. At the request of the defendant, the jury, upon the question of entrapment, was instructed that if they believed from the evidence the New York Central Railroad Co. by its agent did incite, instigate or persuade the defendant Lewis to do or perform things here complained of against him, then in that case,, it was the duty of the jury to return a verdict finding the defendant not guilty. Therefore the defendant had the advantage of this instruction, and the facts having been passed upon by the jury, we are of the opinion that the evidence establishes defendant’s guilt beyond a reasonable doubt.

Since there is no reversible error in the record, the judgment is affirmed.

Judgment affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Denis E. Sullivan

text:
    Elizabeth Shilvock, Appellant, v. The Retirement Board of the Policemen’s Annuity and Benefit Fund, Appellee.
    Gen. No. 38,179.

      Opinion filed April 22, 1936.
    Daniel S. Wentworth and Leonard F. Carmody, both of Chicago, for appellant; Egbert F. Dewey, of Chicago, of counsel.
    William H. Sexton, Corporation Counsel, and George F. Mulligan, Assistant Corporation Counsel, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order of the circuit court quashing a writ of certiorari filed by the plaintiff Elizabeth Shilvock against The Eetirement Board of the Policemen’s Annuity & Benefit Fund, wherein Elizabeth Shilvock sought to have her name placed upon the Pension Eoll of the defendant, as she is the widow of a deceased police officer who it is alleged died as the result of injuries received by him while on police duty.

In order that the circuit court could review the action of the defendant, it was necessary to have before it a record of- the proceedings of the defendant board, and pursuant thereto on August 1, 1933, a writ of certiorari issued from the circuit court returnable to the September Term, 1933, commanding the respondent to “cause to be certified and bring a full, true and complete transcript of all records, papers, documents or files connected with or relating to or concerning the claim of the aforesaid Elizabeth Shilvock to receive a pension,” etc.

On September 11, 1933, a return was filed which recited :

“As and for a return to the Writ of Certiorari heretofore issued in this cause, the Retirement Board of the Policemen’s Annuity and Benefit Fund, respondent herein, respectfully submits the following: ’ ’ Then follows a list of documents or copies thereof, being a copy of plaintiff’s application for a pension, and several letters concerning the accident which it was claimed resulted in the death of plaintiff’s husband while on duty as a police officer, reports of doctors, the history of the claim, public records and a summary and conclusions, a medical statement and a statement by the attorney for the board, reports of meetings and roll calls.

Attached to the return is an affidavit of one Patrick E. Dwyer, dated September 11, 1933, which states that he is the secretary of the Retirement Board of the Policemen’s Annuity and Benefit Fund of Chicago, and is the keeper of the records, papers and files thereof ; that he does hereby certify that the foregoing is a true, perfect and correct copy of the record of the proceedings had before said Retirement Board in, about or concerning the claim of Elizabeth Shilvock to receive a pension, “so far as this affiant is advised are necessary to this answer.” The respondent then prays that having made its return that the writ of certiorari heretofore issued in this cause be quashed.

On December 6,1934, the matter came ón to be heard in the court below upon the petition, the writ, and the return of the respondent to said writ, and the court “Ordered that the writ of certiorari heretofore issued in this cause be and the same is hereby quashed.”

The first question tendered for consideration is whether or not the limitation in the certificate of the return to the writ by the secretary of the pension board is in compliance with the order of the court.

The court order of August 1, 1933, commanded respondent to cause to be certified and bring a full, true and complete record of all documents, papers or files connected with or relating to” the case. The return that was made said it was a true and correct copy of the record and the proceedings had before the Retirement Board “so far as this affiant is advised are necessary to this answer.”

The only office which the common law writ of certiorari performs is to bring before the court the record of the proceedings of an inferior tribunal for an inspection by a superior tribunal. The superior tribunal, upon an inspection of the record, alone, when the writ is sufficient and the writ has been properly issued, determines whether the inferior tribunal had jurisdiction of the parties and of the subject matter, and whether it has exceeded its jurisdiction or has otherwise proceeded in violation of law. Hahnemann Hospital v. Industrial Board, 282 Ill. 316; Brown v. Van Keuren, 340 Ill. 118; McManus v. McDonough, 107 Ill. 95, 99.

From a reading of the record we cannot tell how much was certified to the court and how much was omitted. When the secretary was advised as to what to put in, he may or he may not have left out important records and documents, and when the court’s order directed him to bring a full, true and complete record of all documents, papers or files connected with or relating to the case, nothing less than that would satisfy the order or be sufficient for the court to review in its entirety the proceedings of the said board. The court should have had the entire record before it before passing upon the motion to quash the writ and, in quashing the writ without having before it the complete record, committed error.

For the reasons above given the judgment order of the circuit court should be and the same is hereby reversed and the cause is remanded with directions to vacate the order quashing said writ and to have a compíete' and unqualified return made to the said writ of certiorari of August 1, 1933.

Judgment order reversed and cause remanded with directions.

Hall, P. J., and Hebel, J., concur.


text:
    Otto G. Urban, Executor of the Estate of Margaret Moran, Deceased, Appellee, v. James A. Hynes, Appellant.
    Gen. No. 38,342.

      Opinion filed April 22, 1936.
    W. 0. Burns, of Chicago, for appellant.
    Arle Urban, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This proceeding was started in the probate court of Cook county and was taken to the circuit court on an appeal, which court affirmed the finding of the probate court and entered an order that the respondent James A. Hynes pay unto the petitioner, Otto Gr. Urban, executor of the estate of Margaret Moran, deceased, the sum of $2,390.96, and it is from that order that the defendant Hynes brings his appeal to this court.

Plaintiff’s claim was attempted to be brought under the provisions contained in sections 81 and 82 of the Administration Act of this State, chapter 3, Ill. State Bar Stats. 1935, in an effort to compel the defendant Hynes to deliver up to the executor of the estate of Margaret Moran, funds in the Security Bank of Chicago which it is claimed belonged to the deceased during her lifetime, but which had been placed in a joint account in said bank by the deceased prior to her death with directions for its disposition.

Defendant denies that he has any funds belonging to the said estate and alleges there is money on deposit in the said Security Bank of Chicago amounting to approximately $1,000 in a joint account under the names of the said Margaret Moran and the said defendant.

In Dinsmoor v. Bressler, 164 Ill. 211, it was held that the- proceedings provided by sections 81 and 82 of the Administration Act are not the proper remedy by which to try contested rights to personal property between the representative of the estate of a deceased person and others. That case was cited and followed and the same doctrine reiterated in the case of Moore v. Brandenburg, 248 Ill. 232.

In 1925, the legislature amended sections 81 and 82 of chapter 3, Ill. State Bar Stats. The amendment to paragraph 82, section 81 reads as follows:

“The court shall have power to -hear, settle and adjudge all controverted questions of title and claims of adverse title and to determine the right of property. Such questions of title and of rights of property, and such claims of adverse title shall be determined, upon the demand of either party, by a trial by jury. ’ ’

In the case of Johnson v. Nelson, 341 Ill. 119, in construing these two sections, our Supreme Court at page 122, said:

“These sections provided a summary method for the recovery of property of the character defined in section 81, which belonged to a decedent at the time of his death, but had come into the possession of a third party prior thereto, and which that party either retained in his possession or had concealed or embezzled. (Dinsmoor v. Bressler, 164 Ill. 211.) In a case where the decedent’s ownership of the property in his lifetime was not disputed, the court might order the respondent, by the authority of sections 81 and 82, to deliver the property, or if he had converted it, the proceeds or value of the property, to the executor or administrator. If, hotvever, the respondent claimed to be the owner of the property sought to be recovered, these sections could not be invoked against him, because he had the constitutional right to a jury trial for the determination of the question of the title to the property, and these sections made no provision for such a trial. Nor were these sections designed to afford the means of collecting a debt owing to the decedent at the time of his death. The title to the goods sold or the money lent, in such a case, had passed to the debtor or borrower, and sections 81 and 82 were not available to obtain satisfaction of the debt or claim. To accomplish that end, the personal representative was compelled to institute in a court of competent jurisdiction, a plenary action wherein the defendant had the right to a trial by jury. . . . The amendatory act made additions to both sections. The additions to section 81 by interpolation are: (1) The statement upon oath by which the proceeding is instituted may be made to. the probate court as well as the county court; (2) the respondent’s possession or control as distinguished from his possession merely, and his conversion as well as concealment or embezzlement of the property sought may be the subject of inquiry, and (3) the property for the recovery, of which the proceeding may be brought and the knowledge or information desired may concern property belonging not only to ‘any deceased person’ but also ‘to the executor or administrator or the estate of any deceased person’.”

It is quite evident from an inspection of this record that scarcely any of the requirements of the statute were complied with. Chapter 3, paragraph 82, section 81 of the Ill. State Bar Stats. 1935 provides:

“If any executor or administrator, or other person interested in any estate, shall state upon oath, to any county or probate court, that he believes that any person has in his possession or control, or has concealed, converted, or embezzled, any goods, chattels, moneys or effects, books of accounts, papers or any evidences of debt whatever, or titles to lands belonging to any deceased person, or the executor or administrator, or the estate of any deceased person, or that he believes that any person has any-knowledge or information of or concerning any indebtedness or evidences of indebtedness, or property, titles or effects, belonging to any deceased person, or to the executor or administrator or the estate of any deceased person, which knowledge or information is necessary to the recovery of the same, by suit or otherwise, by the executor or administrator, of which the executor or administrator is ignorant, and that such person refuses to give to the executor or administrator such knowledge or information, the court shall require such person to appear before it by citation and may examine him on oath, and hear the testimony of such executor or administrator, and other evidence offered by either party, and make such order in the premises as the case may require.”

In this case no verified petition or oath was presented in court. No citation was issued by the court. No examination of the defendant was had, as the statute provides, and when the defendant attempted to explain to the court the facts relative to the bank book showing money on deposit in the bank, concerning which the executor had given evidence, the court on objection of the attorney for the executor refused to allow the defendant to testify.

The money which is the basis of this controversy was in a bank and not in the possession of the defendant and created the relationship of a bank depositor and a bank, which is that of debtor and creditor, and the Supreme Court held in the case of Hansen v. Swartz, 345 Ill. 609, at page 613:

11 This remedy is not, however, applicable to the collection of a debt.”

The money being in the bank, even if the executor’s contention was correct, simply created a debt owing by the bank to the estate and the money, therefore, was not in the possession of the defendant. The bank was not a party to this proceeding. Proceedings under this act could not, therefore, be used for the collection of a debt.

In the case of Estate of Philip Kraher v. Launtz, 90 Ill. App. 496, it was held by this court that in a hearing under citation to disclose assets belonging to the estate of a deceased person, the party charged may be heard to testify in his own behalf. Reed v. Joiner, 119 Ill. App. 248.

The defendant’s so-called answer denies all the charges made against him and is signed by him through his attorney. After the entry of the order by the circuit court to pay the money, a rule to show cause was entered by that court to show cause why he should not be punished for contempt of court for nonpayment of the amount on deposit in the bank. The record shows that previous to that time the executor had notified the bank not to pay the money on order of defendant.

This being a statutory proceeding, procedure must be in compliance with the statute. The action here being one for the collection of a debt, the court has no jurisdiction of the subject matter as such actions are not cognizable under sections 81 and 82 of chapter 3, Ill. State Bar Stats. 1935; Johnson v. Nelson, 341 Ill. 119. This being true, the court was without jurisdiction to proceed with the matter and it should have dismissed the petition for that reason.

For the reasons here given the order of the circuit court is hereby reversed.

Order reversed.

Hall, P. J., and Hebel, J., concur.


text:
    Francis M. Allen, Appellee, v. Melvin L. Straus, et al., Defendants. Appeal of Melvin L. Straus et al., Appellants.
    Gen. No. 38,358.

      Opinion filed April 22, 1936.
    Gottlieb & Schwartz and Sonnenschein, Berkson, Lautmann, Levinson & Morse, all of Chicago, for appellants ; I. E. Ferguson, of Chicago, of counsel.
    Shulmán, Shulman & Abrams, of Chicago, for appellee ; Meter Abrams, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a decree entered in the superior court, finding there is due, and that the complainant recover of and from the defendants, Melvin L. Straus, Charles C. Irwin, Frederick W. Straus, J. C. Wright, Robert E. Straus and V. C. Scully, the sum of $3,849.42, together with the amount of money which is in possession of Melvin L. Straus as trustee, and that the said Melvin L. Straus as trustee be and he is hereby directed “to pay over said sum to the complainant exclusive of the amount of judgment heretofore entered against him and the other defendants for the balance, and that execution issue therefor. ’ This decretal order leaves the amount found due uncertain.

The bill is filed by' the plaintiff in this case, as the owner of $4,000 in bonds out of a total of $1,600,000 secured by a first mortgage on the Mayfair Hotel, St. Louis, Missouri. The bill was filed on behalf of the plaintiff and all other bondholders similarly situated who desired to come in and become parties to the bill and thereby avoid a multiplicity of suits. None other than the plaintiff appeared as party plaintiffs. Plaintiff claims that the defendants defrauded him of the true value of his bonds by causing a foreclosure sale-of the mortgaged property, by an order of the circuit court of the City of St. Louis, Missouri, at an inadequate price.

Among the charges made by the plaintiff in its bill are the following:

“Plaintiff further shows that the foregoing sale was not bona fide, was made for the purpose of cheating and defrauding the bondholders and in order to enable them to carry out the inequitable plan, by collusion of the parties and their attorneys; that the trustee whose duty it was to protect all bondholders equally wholly failed to make any effort to find purchasers at the sale but conspired with the bondholders committee to acquire the property for them at its lowest bid; that because of the arrangements made with the mortgagor, the mortgagor or the parties interested in it were prevented from making any bid, and because of this the plaintiff and other non-depositing bondholders were deprived of the value of their securities hy the trustee and his committee; and prior to the entry of the decree certain bondholders had requested the trustee to insert a clause fixing a minimum price at which the property could be sold, but the trustee objected to such a provision, and that this was done in furtherance of the scheme to permit the committee to acquire the property at any price it would fix and to acquire the property at a price which was grossly inadequate and which was a fraud upon the plaintiff and other bondholders; that under the laws of the State of Missouri the purchaser at the foreclosure sale receives a deed of conveyance vesting him with the full title of the premises and there was, therefore, no reason for the consideration paid to the mortgagor as it appears from the said plan, but that the only object was to prevent competitive bidding and to aid the trustee and the committee to carry out the plan.

“That as a result of the foregoing scheme to cheat and defraud the bondholders the trustee and the committee have greatly benefited in receiving compensation for their services and in managing and operating the premises, the exact amount of which is unknown to the plaintiff; that while the trustee was in possession he received large sums of money as found by the said decree entered February 4, 1932, and that subsequent to said decree additional funds were received by him which belonged to plaintiff and the other bondholders, and plaintiff prays that the trustee and the committee may account for all moneys received by them and disbursed and return any funds which were wrongfully diverted, and because of their acts and doings they should not be allowed to retain the spoils and benefits of their plan and should return for the benefit of the bond owners all profits received by them upon a true accounting to be had in this cause.”

The bill of complaint then asks that the trustee and the members of the alleged bondholders protective committee and the depositary who participated in this fraudulent enterprise, as the result of which the bondholders were cheated and defrauded of their securities, should be held jointly and severally responsible in damages to plaintiff and to the other bond owners for the loss and damage thereby caused and after a true and accurate accounting to be had, and after application of the funds in their possession in the reduction of the amounts due to plaintiff and the other bond owners similarly situated, a money decree be entered for the balance, jointly and severally in favor of plaintiff and for the use and benefit of all other bond owners who were thereby defrauded and who desire to join in this proceeding and to contribute to the expense thereof.

The charges above enumerated are serious and, if proven, would doubtless entitle the plaintiff to some relief, but a diligent search of the record fails to show any serious attempt to prove these charges.

The bill of complaint alleges and we think the proof fully shows that on July 1, 1924, the Mayfair Investment Company, a Missouri corporation, executed bonds aggregating $1,600,000 secured by a trust deed to Melvin L. Straus, as trustee, and William R. Orthwein of St. Louis, as cotrustee; that this bond issue was sold to the public by S. W. Straus & Co., and that the plaintiff purchased $4,000 of said bonds and is now the legal holder and owner thereof; that Melvin L. Straus was in 1924 a director and vice president of S. W. Straus & Co.; that interest on the bonds was paid plaintiff from time to time until July 1,1931; that on or about June 24, 1931, he received a letter from S. W. Straus & Co., stating that the income from the property was sufficient to pay the interest which then matured, but that there was no money available to pay the principal then due; that the trustees had taken possession of the property for the benefit of the bondholders and that a committee had been organized to protect the bondholders, consisting of Charles C. Irwin, Frederick W. Straus,-J. C. Wright, Robert E. Straus and N. H. Oglesbee, all officers of S. W. Straus & Co., and that the committee would serve without compensation ; that many of the bondholders believed in the good faith of the trustee, “house” (which means Straus & Co. who issued the bonds) and committee (whichmeans the so-called Protective Committee) and deposited their bonds with the Straus National Bank and Trust Company, as depositary of the same and that on July 31, 1931, plaintiff was informed that the trustee had instituted foreclosure proceedings on behalf of all of the bondholders as a step incidental to the required reorganization; that thereafter the defendants, Straus National Bank, the defendant committee, the trustee and the mortgagor devised a plan of reorganization; that the plaintiff received a letter from the said Protective Committee dated January 28, 1932, stating that the bonds must be deposited before February 5, 1932, and that nondepositing bondholders would be entitled to their pro rata share of the foreclosure price of the property, and that the amount received would, in the opinion of the committee, be substantially less than the value of the new securities to be received by those who deposited their bonds.

The bill further alleges that some of the bondholders who were dissatisfied with the plan intervened by leave of court in the foreclosure proceedings in the circuit court of the City of St. Louis, Missouri, and the court having heard the witnesses and having jurisdiction of the subject matter, entered a decree finding that the plan of reorganization agreed upon between the bondholders committee and the mortgagor was inequitable and detrimental to the rights and interests of bondholders; that the trustees were co-operating with S. W. Straus & Co., and the committee in promoting said plan; that Melvin L. Straus, as an officer of S. W. Straus & Co., had interests in conflict with his duties as trustee, and had taken a position to the disadvantage of the bondholders; that said court by said decree removed Melvin L. Straus as trustee and appointed Ernest A. Green as successor trustee, appointed receivers of the mortgaged property, designated the attorneys for the interveners as attorneys for the receivers, and directed that the new trustee, together with William E. Orthwein, cotrustee, proceed with the foreclosure.

Defendants in substance deny all specific acts of wrongdoing which are charged in the bill and states that all their acts were done pursuant to its powers and duties in the premises and that the plaintiff has no reason to complain and that his losses were the result of economic conditions beyond their control and without fault on their part.

From the decree of the circuit court of the City of St. Louis, Melvin L. Straus and William E. Orthwein appealed to the Supreme Court of Missouri. The said decree of February 4, 1932, was reversed by the Supreme Court upon a stipulation by the parties thereto. The bill charges that the stipulation was improperly entered into, but this the answer denies.

The decree of which complaint is made was vacated and another decree entered by the circuit court of the City of St. Louis on June 3, 1932, under which the property was sold. The second decree entered in the St. Louis court approved the actions of the trustee and confirmed the sale of the property.

The theory upon which the bill was filed and the aid of a court of equity invoked, was that the defendants had conspired or agreed in the original sale of the bonds to plaintiff and others similarly situated, to defraud them by misrepresentation of the facts and by their subsequent actions in relation thereto. In order to prove this first part of the charge it was necessary for the plaintiff to show that the representations were false at the time they were made and were known to be false by the makers thereof or should have been known; that the plaintiff believed the representations made to be true and relied thereon to his damage. There was no proof in relation to any of these.

Next it was charged that the St. Louis court found in its first decree that the trustee was improperly acting and should he and was removed, and that the sale under the first decree was improper and was for an inadequate sum and that it refused to confirm the sale and refused to approve the actions of the committee and appointed a receiver to take possession of the property and hold it for future disposition. This would have been convincing proof of some of the material allegations in the plaintiff’s bill but the decree, making this finding against the defendants, was vacated and set aside by a stipulation of the parties and whether it was improperly set aside or not, there is no proof offered for our consideration. Suffice it to say that the decrees of the courts of St. Louis, Missouri, must, under the law, be received by the courts of Illinois with full faith and credit. In this respect there was no evidence introduced to prove the charges of improper conduct on the part of the parties or their attorneys in the St. Louis courts.

As before stated, whilst this is a bill for an accounting, no decree for an accounting was ordered nor any had. The court appeared to base its decision on the fact that the property was sold in St. Louis for $300,000, which it found was, of itself, proof of fraud. Inadequacy of price alone is not conclusive" proof of fraud, although, taken in connection with other circumstances, it may be a strong element to consider" with other proof which together would be sufficient to find a transaction fraudulent, especially as to a trustee owing a duty to his cestui que trust. Miller v. McAlister, 197 Ill. 72, and cases cited.

It is next contended by the defendants that if the plaintiff wishes to recover, he must appear before the St. Louis courts for his remedy.

This is an action in personam and against a trustee and others for failure to perform an alleged duty to their cestui que trustents.

The basis for the fraud, if any, was established at the time of the sale of the bonds to the plaintiff in Chicago and subsequent actions by the various defendants in relation thereto. Inasmuch as all the parties defendant are residents of this state, the mere fact that the real estate upon which the bonds were issued is located in St. Louis, would not necessarily require •the plaintiff to go into the courts of St. Louis for relief on charges of fraud allegedly committed, at least partially, in this jurisdiction.

From a review of the record, without discussing the matter at further length, we can only say that there is not sufficient evidence to sustain the decree.

If the plaintiff desires an accounting from the trustee on the allegations of fraud, we think he is entitled to have it, provided the proper issues are made by the pleadings, the procedure in chancery cases followed and the findings of the court are made in consonance with the issues and the proof. Other questions, such as burden of proof, rulings on admissibility of evidence, manifest weight of evidence and other points raised in the briefs, will not be decided at this time as we are disposing of the matter on other grounds.

For the reasons heretofore given, the decree of the superior court of Cook county is reversed and the cause is remanded for a new trial.

Decree reversed and cause remanded.

Hall, P. J., and Hebel, J., concur.


text:
    Match Corporation of America, Appellee, v. Acme Match Corporation, Appellant.
    Gen. No. 38,464.

      Opinion filed April 22, 1936.
    Moses, Kennedy, Stein & Bachrach, Edwin A. Halligan and Bernard W. Mages, all of' Chicago, for appellant; Julius Moses, Edwin A. Halligan and R. Weyand, of Chicago, of counsel.
    McInerney, Epstein & Arvey, of Chicago, for appellee; John L. McInerney, Louis M. Mantynband and Sidney Zatz, all of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from, a decree of the circuit court entered in favor of the plaintiff and against the defendant for the violation of a contract for the manufacture and sale of matches. The contract was dated July 9, 1934, and was to endure for a period of five years. It provided that the defendant was to manufacture and sell to plaintiff all the book matches required and sold by the plaintiff in the conduct of its business. It further provided that the defendant would not sell book matches in competition with the plaintiff and would not sell to any one for purposes of resale except jobbers; that plaintiff would resell only at list prices; that both parties would not underquote each other; that plaintiff would advance to defendant $2,500 to be evidenced by certain notes, $1,000 of which advance was to be retained by the defendant for one year as security against losses on special printing orders or on defaults in plaintiff’s payments and $1,500 of which to be repaid by a rebate of $1.50 per case on the first 1,000 cases purchased, the portion of the $1,500 not yet repaid by way of such rebate to be subject to return on 30 days’ notice in either cash or matches at the option of the defendant. The plaintiff alleged the various breaches of the contract and sought damages and an injunction. Prior to this the plaintiff had confessed judgment in the municipal court of Chicago on the two said notes given for the $2,500 advanced by the plaintiff, and the defendant filed a petition for relief from the said judgment by confession. The decree was entered upon the report of a master who fixed the plaintiff’s damages at $879.00 and costs and recommended that the defendant corporation, its agents, officers and employees be permanently enjoined from doing the following:

“. . . from selling or disposing of book matches bearing the name of the plaintiff; from soliciting and accepting orders from customers or accounts of the plaintiff; from interfering and competing with the business of the plaintiff and from directly or indirectly selling matches to any person or firm for the purpose of reselling the same to any consumer, provided, however, the defendant’s right to sell to jobbers, advertising novelty distributors, paper and advertising distributor jobbers, shall not be restrained.” By an amendment to the decree the court found that the defendant had paid all that was due on the municipal court judgment except $63.58 and ordered that upon the payment of $63.58 the plaintiff “shall satisfy in whole the said judgment in the Municipal Court.” Plaintiff paid all that was due on the municipal court judgment based on the note.

The plaintiff contends that the agreement constituted a valid and enforceable contract; that the defendant violated the terms of the contract by failing to fill certain orders given by the plaintiff for book matches and by selling matches to persons not within the excepted class; that the match business is one involving secret formula and unique machinery and the plaintiff was unable to procure matches with the imprint of the name of the plaintiff company from0 other persons; that because of the failure of the defendant to fill plaintiff’s orders under the contract, and the sales of defendant to ■ other persons, the plaintiff was being injured irreparably and was entitled to damages for losses suffered and to an injunction restraining the defendant from making sales to other persons in violation of the terms of the contract.

The defendant contends first that the contract is invalid for the reasons that: (a) It is lacking in mutuality of obligation; (b) The contract is in unlawful restraint of trade; (c) The promises of plaintiff to sell at list prices and of both parties not to underquote each other, made the contract void under the provisions of the Illinois Anti-Trust Law. The defendant further contends that by suing in the municipal court for a return of the money deposited with the defendant as security against losses on the contract, the contract was thereby rescinded; that plaintiff cannot recover damages for failure of defendant to deliver matches unless it shows that the market price of such matches is higher than the price fixed under the contract; that the injunction is invalid because it is unlimited as to time.

There does not seem to be much dispute as to the« facts in this case.

The plaintiff, Match Corporation of America, an Illinois corporation, was organized on June 20, 1934.

The principal complaint made by plaintiff against the defendant is that after entering into the contract, the defendant found out who the plaintiff’s customers were and proceeded to make the matches and sell to them direct and thereby eliminated the plaintiff from the transaction. The defense to this action which was a violation of the control on the part of the defendant is stated by its counsel on page 17 of its brief, as follows:

“While the defendant did sell matches to other persons during the time between the making of the contract and the institution of this suit, evidence was offered, and not contradicted, to show that the matches sold to persons other than the plaintiff were of an inferior grade and would not have been acceptable to the plaintiff.”

Much evidence was heard as to what was done by the various parties in carrying out this contract and from a review of the same we think that both the master and the chancellor made a proper deduction as to the facts from the testimony submitted, so that leaves for our consideration the contention made by the defendant that the contract as entered into was in violation of the law.

As to the legality of the contract it is first contended by defendant that “An agreement by which one party agrees to sell all of a commodity the other may order, and the other party agrees to buy such a quantity of the commodity as the purchaser may resell during a fixed period of time, does not constitute an enforceable contract where previous to the making of the agreement the purchaser had never sold any of the commodity. ”

The contract in this case provides that the party of the second part agrees to manufacture book matches for the party of the first part and the party of the first part agrees to purchase book matches from the party of the second part upon the following terms and conditions :

“. . . Second: So long as the party of the second part shall perform its covenants herein, the party of the first part will purchase all the book matches required and sold by it, in the conduct of its business, from the party of the second part. . . .”

We cannot see why any valid distinction should be made where a contract is entered into between two persons concerning the purchase of goods because of the fact that one of the parties to the contract had not been in business before. This type of contract is what is known in law as a “requirement” contract and calls for the manufacture and delivery by the defendant to the plaintiff of the amount of goods that it would require and sell to its trade. It is the usual business contract entered into between business men when they are estimating and purchasing their supplies for the future. As was said in Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85, at page 93:

“The word, ‘requirement,’ evidently has the same meaning as the word, ‘needs.’ The amount of coal, which was ‘required’ for the business of that season, was the amount of coal, which was ‘needed’ in the business of that season.

“If the word, ‘requirements,’ as here used, is so interpreted as to mean that appellee was only to furnish such coal as appellant should require it to furnish, then it might be said, that appellant was not bound to require any coal unless it chose, and that, therefore, there was a want of mutuality in the contract. But the rule is, that, where the terms of a contract are susceptible of two significations, that will be adopted which gives some operation to the contract, rather than that which renders it inoperative. (Thrall v. Newell, 19 Verm. 202; Evans v. Saunders, 8 Porter, 497.) A contract should be construed in such a way as to make the obligations imposed by its terms mutually binding upon the parties, unless such construction is wholly negatived by the language used.” Brown v. Rounsavell, 78 Ill. 589; Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102.

It is next contended by the defendant that a contract by which one party agrees to sell to the other party and not to sell to other persons and the other party agrees to buy. such a quantity of a commodity as he may resell during a fixed period of time, cannot be enforced against the purchaser in equity by specific performance or injunction and therefore the purchaser will be denied such relief against the seller on the ground of lack of mutuality of remedy. In this case the remedy that was granted by the trial court, after making a finding of the various defaults of the defendant in violation of the contract and giving an accounting of the damages sustained by the plaintiff, in its decree said:

“It Is Further Ordered, Adjudged and Decreed that the defendants, its agents, officers and employees be and they are hereby restrained and enjoined from selling or disposing of book matches bearing the name of the plaintiff; from soliciting and accepting orders from customers or accounts of the plaintiff; from interfering and competing with the business of the plaintiff and from directly or indirectly selling matches to any person or firm for the purpose of reselling the same to any consumer, provided, however, that defendant’s right to sell to jobbers, advertising novelty distributors, paper and advertising distributor jobbers shall not be restrained.”

This order merely prevents the defendant from manufacturing matches and selling them to plaintiff’s customers in violation of its contract. The plaintiff is not asking for specific performance in the sense that he is trying to compel the defendant to manufacture the matches and the court would not enter such an order because of its inability to supervise the doing of such intricate work by the defendant, but the relief can properly be granted by preventing the defendant from manufacturing matches with the plaintiff’s imprint thereon and selling them to the plaintiff’s customers and thereby interfering with and damaging plaintiff’s business.

As was said in Southern Fire Brick & Clay Co. v. Garden City Sand Co., 223 Ill. 616:

“An agreement by a party to a contract not to operate any other fire clay grinding plant upon any land owned or controlled by him and not to sell fire clay to any other persons during the life of the contract is a direct negative covenant, and a court of equity has jurisdiction to enjoin its breach, even though it might have no power to compel him to specifically perform his contract.”

Equity may interfere to restrain the violation of a negative provision in a contract although it cannot enforce the affirmative one where the negative and affirmative provisions are. entirely separate and distinct. American Sand & Gravel Co. v. Chicago Gravel Co., 184 Ill. App. 509.

It is next contended by the defendant that a contract by which a seller, in consideration of the promise of the buyer to take such a quantity of a commodity as the buyer may require, promises to sell to the buyer and to no one else during a fixed period of time is void as being in restraint of trade and contrary to public policy. All contracts which on their face place a restriction upon the acts of the other party to the contract are necessarily a restraint to a certain extent. If the effect does not destroy competition and is merely intended to increase the business of the parties to the contract, and is only incidental to and found necessary in order to protect the parties’ interest as set forth in the contract and does not tend to promote a monopoly, such provisions do not make the contract illegal and void.

In the case of Superior Coal Co. v. E. R. Darlington Lumber Co., 236 Ill. 83, the court said:

“A contract for the sale of coal by a mining company to a retail coal dealer, whereby it is agreed that if the dealer will buy coal of the mining company the latter will not sell coal at wholesale prices to any other dealer in the town, is not void as contrary to public policy or in restraint of trade, even though it may incidentally restrict competition in the sale of coal in the town. . . . And in Brown v. Rounsavell, 78 Ill. 589, it was held that a contract to furnish for sale a certain make of sewing machines, which provided that the purchaser should engage in selling said machine and no other and to buy the same of the seller and no other, was not in restraint of trade and void. ’ ’

It is next contended by the defendant that the plaintiff in maintaining a suit in the municipal court and by securing a judgment on the note, such a suit is an election by the buyer, plaintiff here, to rescind the contract and the buyer cannot maintain a subsequent suit to recover damages and enforce the contract.

The provisions of the contract in relation to the note are practically as follows:

“Eighth: The party of the first part will advance to the party of the second part the sum of Two Thousand Five Hundred Dollars ($2,500.00) in cash, and will receive for the same the following:

“(a) A Promissory note in the sum of Two Thousand Five Hundred Dollars ($2,500.00), due on demaud, payable to bearer and signed by the party of the second part ;

“(b) A refund or rebate in the sum of One Dollar and Fifty Cents ($1.50) per case upon the first one thousand (1000) cases purchased from the party of the second part, until the sum of One Thousand Five Hundred Dollars ($1,500.00) has been refunded or rebated. When the sum of Two Thousand Five Hundred Dollars ($2,500.00) advanced as aforesaid has been returned, refunded or rebated the aforesaid note shall be marked satisfied and returned to the party of the second part;

“(c) The holder of the said note may demand the return of the amount due upon the said note, and the party of the second part shall return the same either in cash or in so-called ‘resale book matches’ at the price hereinabove set forth, said option to be exercised by the party of the second part within thirty (30) days of receipt of said demand.

“Tenth: From the aforesaid sum of Twenty-five Hundred Dollars ($2,500.00), the party of the second part will retain the sum of One Thousand Dollars ($1,000.00) for a period of one year from the date of the execution of this agreement as security to the said party for losses incurred by the said party from:

“(b) Failure of the party of the first part to pay the party of the second part for shipments made under the terms of this agreement at the direction and under the order of the party of the first part;

“(c) If no losses have been incurred as above enumerated, at the expiration of one year from the date hereof, the said sum of One Thousand Dollars ($1,000.00) will be given to the party of the first part.”

The note provided by the contract was a demand note for $2,500, payable to bearer. It is quite evident that it must have been the intention of the parties that, under certain circumstances, suit could be brought on the note at once, otherwise it would not be a demand note. It was negotiable and if it was held by anybody to whom it was transferred, the right to sue would be available at any time. There is nothing in the contract which indicates that demanding payment on this note was a rescission of the contract. Under clause 10 of the contract the $1,000 security was to be retained for a year. The contract expressly provides for the return of $2,500, regardless of the security being held and suing on the note would not amount to a rescission. If no losses have occurred the contract further provides that $1,000 is to be returned to the plaintiff at the end of the year. The $1,000 which was to be kept as security could well be retained and have no connection with the amount to be paid on the note.

The case of Associated Fruit Co. v. San Joaquin Fruit Growers and Shippers, 68 Cal. App. 785, is a case somewhat similar to the case at bar. In that case the defendant agreed to deliver to the plaintiff 25 carloads of grapes at $5 per ton. Upon the execution of the contract plaintiff made an accommodation advance to defendants for $2,000, for which defendants gave their promissory note. The contract provided that an accounting should be made as soon as the grapes were sold by the plaintiff and the amount due therefor collected, and that plaintiff should repay itself the advances from such proceeds. The defendant broke the contract. Before suing on the contract to recover damages, plaintiff sued on the note and recovered a judgment which was paid. Then it sued for damages. It was contended that recovery on the note was an election which barred plaintiff from suing on the contract. The court allowed recovery, explaining that the cause of action on the note existed independently of the contract, saying:

“The doctrine of election of remedies is generally regarded as being an application of the law of estoppel. (De Laval v. United Cleaners, etc., Co., supra.) Thus in the case of executory sales of property of which the cases relied upon are examples, a party to the contract upon its breach may treat the contract as rescinded, and, if he has advanced money on it, bring an action for its recovery; or he may treat the contract as still in force and maintain an action in damages for the breach, but he cannot pursue both courses. Here, however, the rights relied upon are separate and distinct. Plaintiff was entitled in all events to the amount it had advanced as an accommodation, and for which a promissory note was given. It was likewise entitled to the profits arising under the contract. These claims might have been joined in a single action, but plaintiff was not bound to delay bringing its action upon the promissory note when due until such time as its rights to the commission provided in the contract might be determined. Separate causes of action could be maintained under these circumstances. (1 Corpus Juris 1111, 1114), and a resort to one constituted no bar to the other. No advantage was gained by the plaintiff in thus pursuing its remedies, nor was the defendant occasioned any damage thereby.”

Certainly it cannot be contended that the plaintiff in this case by giving to the defendant $2,500 and taking its note therefore, which money was to be retained by defendant, did this for any reason or purpose other than that specified in the contract. When the defendant breached the contract, the plaintiff was entitled to the remedy and to his damages resulting from the wrongful breach by the defendant. When the money was given by the plaintiff to the defendant a merchantable demand note was taken therefor. An effort on the part of plaintiff to obtain a return of this money, which is quite independent of his claim for damages, could not be construed as a denial of his right to relief upon the breach of the contract.

It is contended by the defendant that the court erred in the damages allowed to the plaintiff and that when a purchaser who sues a seller for failure to deliver a commodity purchased from the seller and resold by the purchaser, he cannot recover for loss of profits unless he establishes that he was unable to obtain a commodity on the market which would satisfy his customers.

The evidence shows that the plaintiff ordered all of the matches which it required in its business prior to the filing of the complaint in this case; that plaintiff ordered 1,398 cases, but that only 197 cases were delivered by defendant, leaving unfilled orders to be delivered to plaintiff consisting of 1,201 cases. Although it was claimed by the defendant it introduced evidence to account for its failure to comply with the terms of the agreement, which it claimed was due to the fact that the machinery of the defendant was unable to produce the matches in accordance with the orders of the plaintiff, nevertheless during the month of September, 1934, the defendant manufactured 330 cases of matches and during the month of October, 1934, it manufactured 348 cases, and that prior to the institution of these proceedings defendant delivered to persons other than the plaintiff 481 cases of matches and only delivered 197 cases of matches to plaintiff.

The evidence further shows that the reason the plaintiff did not go into the open market and obtain matches was because it was impossible to secure book matches with the name of the plaintiff corporation imprinted thereon.

The evidence further shows that the match industry is very limited because the machinery to produce book matches is scarce. All manufacturers have built their own machines and the chemical formula is a secret that few people possess; that the Acme Match Company and one other match company are the only two companies who manufacture and assemble book matches in the State of Illinois and that these matches are not a general commodity on the market; that the making of book matches is a limited industry because few people have the formula of a safety book match.

There is no doubt the rule is that in a contract for the purchase and sale of a commodity, where one or the other breaches the contract, the duty of the injured party is to go into the open market and reduce its damages by purchasing therein, if the commodity is obtainable. But, if the article called for in the contract cannot be purchased on the market and the contract purchaser has made contracts of resale, the measure of damages is the difference between the contract price and the resale price. The evidence shows that the plaintiff could not get what it had contracted for in the open market. One of the purposes of this contract was to have the imprint of the plaintiff’s name upon the matches so as to establish its product on the market and associate it with the name of the company. If the plaintiff purchased these matches from another company and was obliged to forego putting their name upon them, they would be deprived of the advertising benefits which would come to them as a result of having their name appear thereon. In addition to that the customers would be required to take other matches than those of the plaintiff, which no doubt would be prejudicial to the plaintiff. As was said by this court in the case of Armeny v. Madson & Buck Co., 111 Ill. App. 621:

“The foregoing authorities establish that it is the duty of the vendee to exercise reasonable diligence in endeavoring to obtain the goods elsewhere, to do all that can reasonably be expected to mitigate the loss and act throughout as a reasonable man of business; but if notwithstanding the use of reasonable diligence he cannot procure the article in the market, the measure of damages is the actual loss sustained by him, and if he has resold the article purchased to another, he is entitled to recover the difference between the price he agreed to pay and that at which he resold, subject to all proper allowances for expenses of carrying on the business of the vendee and similar items.” In following this law we think the master and chancellor properly estimated the measure of damages and that no error was committed by them in this respect.

Complaint is made by the defendant that the injunction restraining the sale of book matches bearing the name of plaintiff and from soliciting and accepting orders from customers or accounts of the plaintiff or from interfering and competing with the business of the plaintiff; from directly or indirectly selling matches to any person or firm for the purpose of reselling the same to any consumer, is unlimited as to time and for that reason is erroneous. The original contract in this case was dated July 9, 1934, and provided that the contract should be binding for a period of five years from its date, which would extend to July 8, 1939. Manifestly, the injunction should not extend the contract for a longer period of time than that covered by the agreement of the parties. For that reason we believe the injunction order should be modified so as not to affect the rights of the parties after the date of the expiration of the contract.

For the reasons given in this opinion, the decree of the circuit court is affirmed as modified by changing the date as to the expiration of the injunction to read as of July 8, 1939.

Decree affirmed as modified.

Hall, P. J., and Hebel, J., concur.