text:
    Jess Anne Thompson, Minor, by Cordelia Thompson Her Mother and Next Friend, et al., Appellees, v. William Wogan, Individually and Trading as The Carioca Club. Chicago Title and Trust Company, Appellant.
    Gen. No. 41,397.
    Opinion filed March 31, 1941.
    Rehearing denied April 14, 1941.
    Lord, Bissell & Kadyk, of Chicago, for appellant; Gordon R. Close and Russell Greenacre, both of Chicago, of counsel.
    McGinnis & Mulholland and Gariepy & Gariepy, both of Chicago, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal brings before us for review a judgment of $2,000 entered in favor of Cordelia Thompson, Jess Anne Thompson and William H. Thompson, Jr. against William Wogan, individually and doing business as the Carioca Club, and the Chicago Title & Trust Company. The action of plaintiffs was based on § 14, par. 135 of the Dram Shop Act. (Smith-Hurd Ann. Stats., ch. 43, p. 40 [Jones Ill. Stats. Ann. 68.042].)

Cordelia Thompson is the wife, Jess Anne and William the minor children of William H. Thompson. Wogan is the keeper of a tavern known as the Carioca Club at 6426-28 S. Ashland avenue in Chicago. The Chicago Title & Trust Company is the owner lessor of the premises on which the tavern is conducted.

There is practically no dispute as to material facts. Plaintiffs’ claims are for injury to their means of support. Their action is based on the statute solely. On the night of June 13, 1936, and continuing into the morning of June 14, Thompson, Sr. visited the tavern and drank alcoholic liquor purchased there. As a result he became intoxicated. While in this condition his conduct provoked Wogan, who struck him knocking him down and fracturing his jaw. Customers intervened, picked Thompson up and placed him on a chair. There was no evidence that Wogan was intoxicated when he struck Thompson or that any person involved in the assault other than Thompson was intoxicated. The injuries sustained were severe. In this action Thompson recovered a judgment against Wogan on account of the assault for $300, from which Wogan has not appealed. There is no contention that the amount of the judgment in favor of Mrs. Thompson and the children is excessive or that errors other than those hereafter mentioned occurred on the trial.

By motion for an instructed verdict at the close of all the evidence, and by motion for judgment notwithstanding the verdict and for a new trial after the verdict was returned, defendants have preserved for review their contention that the evidence is insufficient to sustain a cause of action against them under the statute because it fails to show that the intoxication of Thompson or other persons was the proximate cause of the damage or injury for which the plaintiffs sue. At any rate, it is contended the verdict of the jury is on this issue manifestly against the weight of the evidence and a new trial should have been granted for that reason.

Section 14 of the present Dram Shop Act is identical with section 9 of the Dram Shop Act of 1874, R. S. 1874, p. 438, except that where the words “alcoholic liquor” or “alcoholic liquors” occur in the present act the words “intoxicating liquor” were used in the former act. The section provides:

“Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means , of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving alcoholic liquors aforesaid, for all damages sustained, and for exemplary damages; . . . .”

Manifestly, it was the intention of the legislature to create liability in a class of cases in which there was no liability at common law. Hyba v. C. A. Horneman, Inc., 302 Ill. App. 143 (Abst.). The first section of the Liquor Control Act, of which this section is a part, provides that the act shall be construed liberally in order to effectuate the ends declared. This is not in any sense a common-law negligence action. In Ruling Class Law, 15 R. C. L., § 206, pp. 435, 436, it is stated that whether damages remotely as well as proximately due to intoxication may be recovered usually depends upon the phraseology of the statute, and where an action is brought for damages for the affirmative act of an intoxicated person the courts are practically unanimous in holding it is unnecessary to show the intoxication was the proximate cause of the injury, but where the action is based on the clause “in consequence of the intoxication,” or its equivalent, it has usually been held necessary to prove the intoxication proximately caused the damage. In support this authority cites cases here relied on: Shugart v. Egan, 83 Ill. 56, 25 Am. Rep. 359; and Schmidt v. Mitchell, 84 Ill. 195, 25 Am. Rep. 446.

In the Shugart case a drunken husband insulted and menaced a party who stabbed him. The Supreme Court held the intoxication was not the cause of the injury to the wife’s support, quoting Lord Bacon’s statement that the law “contenteth itself with the immediate cause.” In the Schmidt case Mitchell, the husband, became drunk, attacked the home of another party and while doing so received a slight wound from a pistol shot. By reason of his neglect in refusing to follow the advice of his surgeon this slight wound resulted in his death. The intoxication was held to be a cause too remote to permit recovery. In both of these cases two judges dissented.

In the later case of Schroder v. Crawford, 94 Ill. 357, 34 Am. Rep. 236, these cases were distinguished. There the husband of the plaintiff drank liquor sold by one Sullivan who conducted a saloon on premises leased from Schroder, and became drunk. At about 5:00 o’cloók the next morning his dead body was found on the railroad track crushed and mangled. He had to cross these tracks on his way home. The Supreme Court said the case differed from a case where a party was injured by the wilful criminal act of a third party, and that the death of the deceased was the natural and probable result of his intoxication.. The opinion cites Emory v. Addis, 71 Ill. 273, as a similar case, points out that the suit is based on a statutory remedy rather than common-law principles and that under the same circumstances there would be liability where a husband froze to death or died from falling into a fire or drowned in a freshet. The opinion said it was not the intention that the intoxicating liquor alone of itself, exclusive of other agency, should do the whole injury. That would fall quite short of the measure of remedy intended to be given.

In Baker & Reddick v. Summers, 201 Ill. 52, cited by defendant, there was a suit by the wife and judgment in her favor. The husband of plaintiff was shot and killed by one Marcum. The evidence tended to show defendants sold liquor to the husband who became intoxicated by reason thereof and assaulted Marcum while they were in a gambling room above defendants’ saloon. The Supreme Court said: “It was necessary for plaintiff to prove the sale of liquor, consequent intoxication, and that such intoxication caused the death of her husband.”

Plaintiff was permitted to prove by the president of the town board that he had called the attention of defendants to the fact that a gambling room was conducted above their saloon. This was held to be improper and prejudicial. By an instruction the jury was told that if the killing of plaintiff’s husband was in consequence of the sale or gift of liquor to him by defendants and the negligent act of a man named Doc Marcum, then the sale was the effective cause of the injury and might be regarded as the proximate cause of the killing. The court said there was no evidence that the death of Summers was because of any negligent act. The instruction was therefore held inaccurate. For these and other causes the judgment was reversed and the cause remanded for another trial. The case is not in point here.

Defendant also cites Haw v. 1933 Grill, Inc., 297 Ill. App. 37. There the tavern keeper sold liquor to Haw, plaintiff’s husband, from which he became intoxicated and while in that condition got into an altercation with one Belmont, a manager of defendant’s tavern. Belmont struck Haw in the right eye injuring him severely and for a time incapacitating him from labor. As here, the defense interposed was that the intoxication was not the cause of plaintiff’s injury but rather an intervening cause, namely, an assault by Belmont who was entirely sober. The opinion reviews the authorities and following Jones v. Keilbach, 295 Ill. App. 598, holds that Haw’s intoxication was a direct contributing factor to his injury which defendant might have reasonably foreseen. The Jones case held that although there was an intervening and independent outside force causing the injury defendant was liable if the intoxication was a contributing factor to the independent force. The court also cited King v. Haley, 86 Ill. 106, and said:

“We are impelled to hold that Haw’s intoxication was a direct contributing factor to his injury, that defendant might reasonably have anticipated such a consequence as Haw’s injury as a result of his intoxication, and.that plaintiff’s action is within the contemplation of the section of the Dramshop Act heretofore set forth.”

At any rate the question of proximate cause is for the jury and the jury here has returned a verdict for plaintiff on that issue which we cannot say is against the manifest weight of the evidence. The judgment will be affirmed.-

Judgment affirmed.

O’Connor, P. J., and McSurely, J., concur.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Sol Di Cianni and Nick Di Cianni, Trading as Midwest Freight Forwarding Company, Appellees, v. Underwriting Members of Lloyd’s, London, Bound Under Policy No. A-9081, Appellants.
    Gen. No. 41,447.
    Opinion filed March 31, 1941.
    Lord, Bissell & Kadyk, of Chicago, for appellants; Gordon R. Close and Robert W. Macdonald, both of Chicago, of counsel.
    William Feldman, of Chicago, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiffs sued on an insurance policy to indemnify loss by fire. There was a trial by the court with judgment for $1,064,22. Defendant appeals.

The statement of claim alleged the issue of the policy to plaintiffs; the loss of a carg-o of lumber in one of plaintiffs’ trucks in transportation to Leavenworth, Kansas; suit against plaintiffs by the consignor, the Cross Box Company, in the municipal court of Omaha, Nebraska; notice by plaintiffs to defendant of the loss and their request to it to defend the suit, which it refused to do; judgment in the Nebraska court for the.value of the lumber, $701, with costs and other damages by way of attorney’s fees and expenses of defending, making a total amount of $1,064.22, for which the judgment was rendered in the municipal court.

The pleadings of both parties were verified. The defendant attached to the affidavit of merits a copy of the insurance policy and an autheticated record of proceedings of the suit brought in the Nebraska court. The insurance policy ran to the “Midwest Freight Forwarding Company.” The affidavit of merits denied the issue of the policy to plaintiffs, denied that plaintiffs suffered a loss by fire as alleged or that plaintiffs shipped a cargo as alleged. The suit is by Sol and Nick Di Cianni, doing business under the name of Midwest Freight Forwarding Company. The affidavit of merits shows that Nick Di Cianni has no interest in the Midwest Freight Forwarding Company. Plaintiffs did not reply to this assertion. It, therefore, stood admitted. Wiedoeft v. Holton, 294 Ill. App. 118; Rule 119 of the municipal court.

Plaintiffs upon trial offered the insurance policy in evidence. It was received, and they rested. It was the only evidence offered. There was no evidence that Nick and Sol Di Cianni were the parties to whom the insurance policy issued or that they at any time suffered any loss by fire. The authenticated proceedings of the Nebraska suit showed that Midwest Freight Forwarding Company was a copartnership composed of Sol Di Cianni and Dominic Di Cianni, and there was a specific denial under oath that Nick Di Gianni was a part owner of the business or officer in it. The statement said the cargo lost was in one of plaintiffs’ trucks. The affidavit of merits denied this. There was no proof in the record of this material fact. The authenticated record of the Nebraska court also shows that the judgment there was not based on loss by fire but rather for misrepresenting that the cargo was insured when in fact it was not.

There was no evidence tending to prove issues of fact raised by the pleadings. The trial judge stated that he felt compelled to render judgment because of the allegations in paragraph 4 of the statement of claim, which were not denied. Apparently the court misapprehended the condition of the pleadings. There was no evidence to sustain essential averments of plaintiffs ’ cause of action as stated in that paragraph. Hoffman v. Central Surety & Insurance Corp., 297 Ill. App. 371; Benes v. Bankers Life Ins. Co., 282 Ill. 236; Soukup v. Halmel, 357 Ill. 576; Williamson v. American Ins. Union, Inc., 284 Ill. App. 150. It is unnecessary to discuss other questions.

The judgment will be reversed.

Judgment reversed.

O’Cohnor, P. J., and MoSitrely, J., concur.


text:
    Leo Awotin, Appellant, v. Meyer Abrams et al., Appellees.
    Gen. No. 41,463.

      Opinion filed March 31, 1941.
    Frank G. Matavosky and Johntry & FitzGerald, both, of Chicago, for appellant.

      Shulman, Shulman & Abrams, of Chicago, for appellees and cross-appellants; Meyer Abrams, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff is a former client. Defendants are attorneys at law. Suit was brought on a written contract under seal by which defendants were employed to render legal services. Three complaints filed were stricken on motion. Plaintiff then filed a fourth amended complaint which was also stricken, the suit dismissed and he appeals.

The motions to dismiss were filed under sections 33(2), 45 and 48 of the Civil Practice Act. In support of the motion under § 48 the affidavit of Meyer Abrams, who handled the litigation for plaintiff, was filed and the facts stated in it are not denied. The contract of employment was entered into June 11, 1931. Plaintiff had brought suit in the circuit court to recover damages against the Atlas Exchange Nat. Bank on its promise to repurchase at the option of plaintiff bonds sold by the bank to him of the par value of $35,000. The cause had been tried.and a finding and judgment entered for defendant. Plaintiff employed defendants here to perfect an appeal to the Appellate Court. They did so and the judgment was reversed. (Awotin v. Atlas Exchange Nat. Bank, 265 Ill. App. 238.) Upon retrial a judgment was entered in favor of Awotin for $39,851.66. The bank appealed but did not perfect its appeal. However, December 30, 1933, it sued out a writ of error. In the meantime, plaintiff brought another suit of the same kind in the municipal court of Chicago. Defendants were his attorneys in this suit and obtained judgment in his favor for $4,000. For services in that suit plaintiff paid defendants $200. The Atlas National Bank did not pay the judgment rendered against it in the circuit court. It had consolidated with another national bank under the name of West Side Atlas National Bank.

March 11, 1932, plaintiff and Rose Kimen, who was his caretaker, sued the consolidated bank and its stockholders to have their assets subjected to the payment of their judgments. The suit was brought in the United States District Court. The stockholders of the consolidated bank were also made defendants. The suit was in equity, No. 11555. Defendants acted as attorneys for plaintiffs, Awotin and Kimen. The cause was put at issue and referred to a master, who on November 23, 1933, reported in favor of plaintiffs. In this case plaintiff advanced to defendants- $130, the estimated court costs. The fourth amended bill says only $16.30 of this amount was used for that purpose.

At the June term, 1934, the Appellate Court reversed the judgment in favor of plaintiff theretofore rendered in the circuit court on writ of error sued out by the bank on December 22, 1933, 6 days after the opinion of the Supreme Court of this State was filed in Knass v. Madison & Kedzie State Bank, 354 Ill. 554. The Appellate Court reversed in 269 Ill. App. 588. The Supreme Court in the Knass case held contracts of repurchase to be void as contrary to the statute of the State and against public policy. The Awotin-Atlas case reached the Supreme Court and was affirmed in 295 U. S. 209. Other attorneys represented plaintiff in that court. Plaintiff sued these attorneys for alleged negligence in failing to present to the Supreme Court a point as directed. There was a judgment for defendants in the trial court which was affirmed by this court. (Kimen v. Ettelson, 303 Ill. App. 230 (Abst.).) After the decision in the Knass case the master in the Federal court changed his finding in favor of the plaintiffs to a finding against them. Plaintiffs there (Kimen and Awotin) employed other attorneys to represent them. However, there was a decree against them which was afterwards affirmed by the Federal Court of Appeals. (Kimen v. Atlas Exchange Nat. Bank of Chicago, 92 F. (2d) 615.)

The principal charge made in the complaint is that defendants failed to consummate an offer of cash settlement for $35,000 made by the liquidator of the bank. The offer, it is said, was open from December 15, 1933, to June 15, 1934. The fourth amended bill says defendants demanded $3,500 additional attorneys ’ fees; demanded that plaintiff acknowledge in writing that defendants had received only $1,100 in fees, whereas plaintiff had paid them $1,500; that “plaintiff tried to have them accept the $35,000 offer,” but defendants represented that they were the only persons in a position to make the settlement, etc.

January 31, 1934, defendants filed a claim for attorneys’ lien, copy of which is attached to the fourth amended complaint. Plaintiff says defendants by their contract were obligated to make this settlement, which they did not do, and were also obligated to carry on the litigation in the Supreme Court of the United States and in the Federal courts, which they did not do although requested.

The bill demands damages to the amount of $35,000 with interest, the repayment of costs and expenses advanced by plaintiff in all the litigations, including the attorneys’ fees paid to the attorneys who represented plaintiff in the Supreme Court of the United States and in the Federal court, together with interest. The whole claim made is about $80,000.

Plaintiff says the Civil Practice Act is to be liberally construed. This is generally true but does not mean that a motion to dismiss admits inferences and conclusions of the pleader. Klein v. Chicago Title & Trust Co., 295 Ill. App. 208. Moreover, allegations of a complaint which are negatived by exhibits attached to it will be controlled by the exhibits. Lyons v. 333 North Michigan Ave. Bldg. Corp., 277 Ill. App. 93; Bunker Hill Country Club v. McElhatton, 282 Ill. App. 221. The contract here attached does not obligate defendants to render legal services in connection with any settlement that may arise nor does it require them to perform services for Kimen and the plaintiff in the Federal court.

Defendants argue they were without right to accept the settlement because the Supreme Courts of the State and the United States held the repurchase contracts to be void as against public policy. They say the consideration for such a settlement would have been void. We hold plaintiff had a right to have that question litigated, and if a settlement had been made in good faith the forbearance to further litigate would have constituted a valid consideration. Pyle v. Murphy, 180 Ill. App. 18; Berry v. Berry, 183 Ky. 481, 209 S. W. 855, 857.

However, the compensation to be paid defendants under the contract was in part contingent in its nature. Defendants had a financial interest in the proposed settlement. Plaintiff had employed other attorneys. He was not without legal advice and seems to have known his rights pretty well. He had no right to settle, to the prejudice of defendants. Allinson v. Pierson, 285 Ill. 387. He could have settled by setting aside the portion of the proceeds subject to defendants’ lien. Levy v. Grand Central Wicker Shop, 249 N. Y. 168. Defendants were financially interested in the claims. Lewis v. Braun, 356 Ill. 467. When the proposed settlement arose their interests were adverse to plaintiffs. At any rate, the allegations as to this settlement are mere conclusions which, stripped of verbiage, do not convince. After the decision in the Knass case, we hold there was. no further obligation on defendants to render further legal services under the contract as made. The law as finally de-dared on the question of the obligation of state and national banks to repurchase securities sold, is found in Rothschild v. Manufacturers Trust Co., 279 N. Y. 355, 18 N. E. (2d) 527; Kimen v. Atlas Exchange Nat. Bank, 295 U. S. 215, 216, 79 L. Ed. 1398, 1399; and Knass v. Madison & Kedzie State Bank, 354 Ill. 554, 188 N. E. 836. Also see note to the Rothschild case in 120 A. L. R 485.

In Kimen v. Ettelson, 303 Ill. App. 230 (Abst.), we said: “We are persuaded that no skill or vigilance of a lawyer, however distinguished, could have procured a different decision in the Kimen case. ’ ’

This suit ought not to have been brought. Defendants insist that under section 41 of the Civil Practice Act statutory costs should be assessed against plaintiff, and that this court should direct the court below to assess further damages.

Section 41 of the Civil Practice Act provides:

“Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading the same to the payment of such reasonable expenses, to be summarily taxed by the court at the trial, as may have been actually incurred by the other party, by reason of such untrue pleading. ’ ’

This provision seems to have been copied from a New Jersey rule of court. (Smith-Hurd Ann. Stats., ch. 110, par. 165, p. 255 [Jones Ill. Stats. Ann. 104.041].) In order to be applicable, as we read it, the allegations of the pleading must have been made without reasonable cause and in bad faith and “found to be untrue.” No evidence was taken here. The well pleaded facts in the ruling on the motion to strike are found insufficient. They are not found to be untrue within the meaning of section 41. Defendants filed an affidavit in support of their motion to strike under section 48. These facts were not denied but were not applicable under that section. While we think the suit should not have been brought, we cannot hold the chancellor erred in denying this motion.

The judgment will be affirmed.

Judgment affirmed.

O’Connor, P. J., and McSurely, J., concur.


author: Mr. Justice Matohett

text:
    Ettie Fisher, Executrix of Estate of Meyer Fisher, Deceased, and Nathan Fisher, Appellees, v. City of Chicago, Appellant. Edna Williams, Appellee, v. City of Chicago, Appellant.
    Gen. Nos. 41,500, 41,501.
    Opinion filed March 31, 1941.
    Rehearing denied April 14, 1941.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa, Robert J. Nolan and Alfred Kamin, Assistant Corporation Counsel, of counsel.
    Irving Breakstone, of Chicago, for appellees.
   Mr. Justice Matohett

delivered the opinion of the court.

These appeals each bring before us for decision the identical question whether the municipal court of Chicago has jurisdiction to hear and enter judgment in a case where the snit is based on unpaid interest accrued on a judgment entered in a suit to condemn property for the use of the city under section 32 of the Local Improvement Act where the amount claimed is more than $1,000. In Gen. No. 41,500 the judgment is for $1,345.27, and in Gen. No. 41,501 for $1,924.60.

After much litigation it has been settled that such judgments draw interest by reason of section 3 of the interest statute. Blaine v. City of Chicago, 366 Ill. 341; Blakeslee’s Storage Warehouses v. City of Chicago, 369 Ill. 480, and Northwestern Yeast Co. v. City of Chicago, 301 Ill. App. 303, are only a few of the cases so holding. The opinions in these cases in effect say that a judgment rendered pursuant to section 32 of the Local Improvement Act is a judgment quod recuperet to which section 3 of the Interest Act is applicable, and that a defendant owning property which has been taken by condemnation judgment is entitled to receive interest on the judgment although the defendant is a municipality.

The precise question here is whether the municipal court of Chicago has jurisdiction of a snit to recover interest based on such a judgment. The briefs seem to concede that the answer to the question depends on the construction given to section 2 of the Municipal Court Act. (Ill. Rev. Stat. 1939, ch. 37, par. 357 [Jones Ill. Stats. Ann. 108.028].) This section provides that the municipal court shall have jurisdiction of, “First. Actions involving over $1,000. Cases to be designated and hereinafter referred to as cases of the first class, which shall include (a) all actions on contracts, express or implied, whether implied in law or implied in fact, when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000);

The city points out that the Supreme Court in practically all the cases considering the question of whether interest was recoverable held the liability to be purely statutory, as in People ex rel. Farwell v. Kelly, 368 Ill. 164, where it said: “Interest is purely statutory and arises neither from an agreement, express or implied, nor by way of damages or penalty.”

The city points out that in the Blakeslee case, where the Supreme Court considered a plea interposed of the statute of limitations and said an action to recover interest on a judgment of this kind fell within the term “all civil actions not otherwise provided for,” as used in the Limitations Act.

In Brown v. Gerson, 182 Ill. App. 177, this court considered the question of whether under section 2 of the Municipal Court Act that court had jurisdiction of a suit brought to recover on a judgment at law. The opinion was filed in the October term, 1913, prior to the amendment of § 2, which will be. hereafter noticed. Section 2 then provided the court should have jurisdiction of, “First. Cases to be designated and hereinafter referred to as cases of the first class, which shall include (a) all actions on contracts, express or implied, . . . ,” when the amount claimed exceeded $1,000. The court in an exhaustive opinion by Mr. Justice G-ridley reviewed the English and Illinois cases and concluded that an action on a judgment was not on a contract, either express or implied, within the meaning of § 2, and the court was therefore without jurisdiction.

In the later case of People v. Dummer, 274 Ill. 637, the Supreme Court had before it the question of whether the municipal court had jurisdiction in a suit to collect personal property taxes to an amount in excess of $19,000. It was held the court was without jurisdiction. The opinion defines a contract, quoting 2 Blackstone’s Com. 442; 2 Kent’s Com. 449; 1 Parsons on Contracts, § 1, and said in effect there was no express promise by a property owner to pay taxes and that a contract might be implied in cases “where an agreement in fact” is presumed from the act of the parties of which Chudnovski v. Eckels, 232 Ill. 312, and Harty Bros. & Harty Co. v. Polakow, 237 Ill. 559, were illustrations. In these cases the liability depended upon an obligation imposed by statute supplemented by voluntary acts of the defendants. The court pointed out the clear distinction between a contract “implied in fact” and a contract created by “construction of law,” when it said:

“The term ‘implied contract’ has also been applied to a class of obligations which are created by law without regard to the assent of the party upon whom the obligation is imposed, on the ground that they are dictated by reason and justice. They are not contract obligations in the true sense because there is no agreement of the parties, but they are constructive contracts created by the law. ... In those cases the idea of a contract is purely fictitious, since there are none of the elements of a contract present and the intention of the parties is entirely disregarded. (Board of Highway Comrs. v. City of Bloomington, 253 Ill. 164; Ann. Cas. 1913a, 471.) Where a contract is implied in fact it results as a legal inference from the facts and circumstances although not formally stated in words, and the difference between such a contract and an express contract is in the means of proof, whether by words or by conduct. In contracts created by construction of law, liability exists from an implication of the law arising from facts and circumstances independent of intention. (6 R. C. L. 558.) Such contracts are contracts merely in the sense that a remedy is by the statutory remedy of assumpsit and are created and governed by the principles of equity. ’ ’

Thereafter, the legislature by an act approved July 8,1931 (see Laws of Illinois, 1931, p.-420, § 2) amended this section of the statute so as to read “all actions on contracts, express or implied, whether implied in law or implied in fact.” The act as amended was submitted to a referendum of the voters of the City of Chicago and approved by them and is now the law. In view of the history of this amendment as shown in the cases cited, it seems entirely clear it was the intention of the legislature to grant to the court jurisdiction to hear and enter judgment in precisely this kind of a case.

In Fidelity & Deposit Co. of Maryland v. Stanford, 296 Ill. App. 1, we reviewed the history of this section and held in substance that as amended it gave jurisdiction to the municipal court in all cases where the amount claimed was above $1,000, and where the case rested upon a contract implied by law as well as fact, and in particular, that it gave jurisdiction to hear a suit based upon a judgment rendered by a court of a sister State. We think it quite unnecessary to again repeat what was said in that case.

The judgment upon which this suit is based by virtue of the statute draws interest, and the law in the interest of justice holds irrespective of any intention of the parties that the defendant has promised to pay the judgment with interest. True, it is based on fiction but a fiction that makes for justice, and we cannot doubt that this was the intention of the legislature.

In both cases the judgments will be affirmed.

Judgments affirmed.

O’Connor, P. J., and McSurely, J., concur.


author: Presiding Justice Wolfe.

text:
    Leonard Killey, Appellant, v. Brown Lynch Scott Company, Appellee.
    Gen. No. 9,586.

      opinion filed February 14, 1941;
    rehearing denied April 2, 1941.
    Charles E. Lauder and Frederick H. Lauder, for appellant; Safford, Kritzer & Fulton and M. G. Soule, for appellee.
   Opinion by

Presiding Justice Wolfe.

‘ ‘Hot to be published in full.’ ’


text:
    Doris Beery, Appellee, v. Ralph Y. Breed, Administrator of Estate of Nellie M. Breed, Deceased.
    Gen. No. 9,621.
    opinion filed February 14, 1941;
    rehearing denied April 2, 1941.
    Thomas J. Welch and Vera M. Binks, for appellants; James H. Andrews, Gregg A. Young and Harper Andrews, for appellee.
   Opinion by

Presiding Justice Wolfe.

“Hot to be published in full.’’


author: Presiding Justice Fulton.

text:
    Alexander Lumber Company, Appellant, v. L. W. Swindlehurst et al., Appellees.
    Gen. No. 9,247.

      opinion filed February 25, 1941.
    Hadley & Leren, Richard F. Dunn and Leonard W. Ingram, for appellant; Charles W. Hadley and Edward Barry, Jr., of counsel; Louis L. Williams and Costigan, Wollrab & Yoder, for appellee Harrison B. Noble.
   Opinion by

Presiding Justice Fulton.

“Not to be published in full. ’ ’


text:
    Mack Henry, Appellee, v. East and West Insurance Company of New Haven, Connecticut, Appellant.
    Gen. No. 9,249.
    opinion filed February 25, 1941;
    rehearing denied April 1, 1941.
    Samuel Levin and Wilson & Sehmiedeskamp, for appellant; Lancaster & Nichols and G. Derk Green, for appellee.
   Opinion by

Presiding Justice Fulton.

“Not to be published in full.’’


text:
    Wm. Vollbracht and Roy W. Vollbracht, Trading as Wm. Vollbracht Company, Appellants, v. William Renken et al., Trading as Renken Bros., Appellees.
    Gen. No. 9,256.
    opinion filed February 25, 1941.
    Richard F. Scholz, for appellants; Lancaster & Nichols, for appellees.
   Opinion by

Presiding Justice Fulton. “Not to be published in full.”


author: Justice Riess.

text:
    People of the State of Illinois, Defendant in Error, v. John Player, Plaintiff in Error.
    Gen. No. 9,257.
    opinion filed February 25, 1941;
    rehearing denied April 1, 1941.
    George I. Hicks and Hoff & Hoff, for plaintiff in error; John E. Cassidy, Attorney General, for defendant in error; L. Cantrill, of counsel, and A. B. Dennis, Assistant Attorney General.
   Opinion by

Justice Riess.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. Juanita Green, Appellee, v. Edna Hapenney, Appellant.
    Gen. No. 9,269.
    opinion filed February 25, 1941.
    R. L. Russell, State’s Attorney and Harold H. Kuhfuss, Assistant State’s Attorney, for appellant; Velde & Prettyman and Harold H. Velde, for appellee.
   Opinion by

Justice Riess.

“Not to be published in full.”


author: Presiding Justice Stone.

text:
    Charles Klehm, Appellee, v. Edward Tripple, Appellant.

      opinion filed March 1, 1941.
    Lindauer & Lindauer and Sam S. Pessin, for appellant; Walters & Walters, for appellee.
   Opinion by

Presiding Justice Stone.

“Hot to be published, in full.’’


text:
    Katherine Schafer, Appellee, v. City of Edwardsville, Illinois, Appellant.
    opinion filed March 1, 1941.
    Perry H. Hiles and D. M. Buckley, for appellant; Tyree C. Derrick, Robert A. Mellrath and J. D. Wilson, for appellee.
   Opinion by

Presiding Justice Stone.

“Hot to be published in full.’’


author: Justice Culbertson.

text:
    Eugene J. Ambuehl, a Minor, by Jacob Ambuehl, his Father and Next Friend, Appellee, v. Cletus Steiner, Appellant.

      opinion filed March 1, 1941.
    Oehmke & Dunham, for appellant; E. Fred Gerold, Jr., of counsel; Geers & Geers, for appellee.
   Opinion by

Justice Culbertson.

“Not to be published in full.”


author: by Justice Dady.

text:
    Joseph Frierdich, Appellee, v. City of Belleville, Illinois, Appellant.
    opinion filed March 1, 1941.
    L. N. Nick Perrin, Jr., for appellant; Farmer, Klingel & Baltz and Beasley & Zulley, for appellee.
   Opinion

by Justice Dady.

“Not to be published in full.”


author: Justice Dady.

text:
    John H. Wetzel and Nora E. Wetzel, Appellees, v. Charles Pruitt, Appellant.

      opinion filed March 1, 1941.
    Henry B. Baton, for appellant; Terry, Gueltig & Powell, for appellees.
   Opinion by

Justice Dady.

“Not to be published in full.’’


text:
    Clint Hamilton et al., Appellees, v. Albert Stocke, Appellant.
    opinion filed March 1, 1941.
    Dewey & Cummins, for appellant; Asa J. Wilbourn, for appellees.
   Opinion by

Justice Dady.

“Not to be published in full.”


text:
    Laclede Griffen, Appellant, v. Schubert Coal Company, Appellee.

      opinion filed March 15, 1941.
    Johnson & Johnson, for appellant; Oehmke & Dunham, for appellee.
   Opinion by

Justice Dady.

“Not to be published in full.”


author: Pkesiding Justice O’Connob.

text:
    Christina M. Carlen, Appellee, v. Harry C. Cottrell, Appellant.
    Gen. No. 41,378.
    opinion filed March 31, 1941.
    Dunbar & Rich, for appellant; David O. Dunbar, Stanley Rich and M. J. Atkinson, of counsel; Geary V. Stribgren, for appellee.
   Opinion by

Pkesiding Justice O’Connob.

“Not to be published in full.”


author: Presiding Justice O’Connor.

text:
    Carl A. Johnson, Appellant, v. Irene M. Watson et. al., Appellees.
    Gen. No. 41,403.

      opinion filed March 31, 1941;
    opinion modified and rehearing denied April 14, 1941.
    Deming, Jarrett & Mulfinger, for appellant; Henry E. Ayers, for certain appellees; Horace A. Young, for certain other appellee.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


text:
    Louis Pasecky, Appellee, v. Guy A. Richardson et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 41,410.
    opinion filed March 31, 1941.
    Frank L. Kriete, Thomas M. Morris and Arthur J. Donovan, for appellants; John B. Guilliams, of counsel; Henry Pollenz, for appellee; John A. Zvetina, of counsel.
   Opinion by

Presiding Justice O’Connor.

“Not to be

published in fuU. ’ ’


author: by Presiding Justice O’Connor.

text:
    Clark Memorial Missionary Baptist Church, Inc., Appellant, v. Liberty National Bank of Chicago et al., Appellees.
    Gen. No. 41,439.

      opinion filed March 31, 1941.
    B. G. Clanton, for appellant; Leo L. Stone and Sidney J. Goldstein, for appellees.
   Opinion

by Presiding Justice O’Connor.

“Not to be published, in full.”


text:
    People of the State of Illinois ex rel. Oscar Nelson, Auditor of the State of Illinois, v. Binga State Bank. Joseph Z. Willner, Appellant. Charles H. Albers, Receiver of Binga State Bank and William J. Warfield, Appellees.
    Gen. No. 41,513.
    opinion filed March 31, 1941.
    Harry A. Biossat, for appellant; James B. Cashin, for appellee William J. Warfield.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


author: Presiding- Justice O’Connor.

text:
    Horton Conrad, Appellee, v. Wright and Company, Appellant.
    Gen. No. 41,524.

      opinion filed March 31, 1941.
    Gordon, Pierce, Edmonds & Martin, for appellant; Elbridge Bancroft Pierce, of counsel; Scott, MaeLeish & Falk, for appellee; George A. Newton, of counsel.
   Opinion by

Presiding- Justice O’Connor.

“Not to be published in full.”


author: Justice McSurely.

text:
    People of the State of Illinois ex rel. Joseph Tauer, Appellee, v. Henry Brown, Appellant.
    Gen. No. 41,244.
    opinion filed March 31, 1941;
    rehearing denied April 14, 1941.
    Ellis & Westbrooks and Harris B. Gaines, for appellant; Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.”


author: Justice McSueely,

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. John Garbacz et al., Appellants.
    Gen. No. 41,336.

      opinion filed March 31, 1941.
    Helen M. Cirese, for appellants; Clyde C. Fisher, of counsel; Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of counsel.
   Opinion by

Justice McSueely,

“Hot to be published in full.’’


author: Justice Matchect.

text:
    Louis Lieberman, Appellee, v. Aaron E. Kanter and Eleanor Kanter, Appellants.
    Gen. No. 41,385.
    opinion filed March 31, 1941.
    Edward Gager, for appellants; Osear H. Green, of counsel; Solomon M. Gliek, for appellee; Abraham H. Mailer, of counsel.
   Opinion by

Justice Matchect.

“Hot to be published, in full.’’


author: Justice Matohett.

text:
    Automatic Oil Heating Company, Appellee, v. Fred B. Lee, and Cordelia Lee, Appellants.
    Gen. No. 41,405.

      opinion filed March 31, 1941.
    B. G. Clanton, for appellants; Marshall & Marshall, for appellee; Maurice G. Shanberg, of counsel.
   Opinion by

Justice Matohett.

“Not to be published in full.”


author: Justice Matchett.

text:
    People of the State of Illinois ex rel. Leo P. Ratkowski et al., Appellants, v. Edward J. Kelly, Mayor of the City of Chicago, et al., Appellees.
    Gen. No. 41,430.
    opinion filed March 31, 1941;
    rehearing denied April 14, 1941.
    Wolf & Love and Nathan Allen, for appellants; Nathan Allen and Alexander Wolf, of counsel; Barnet Hodes, Corporation Counsel, for appellees; J. Herzl Segal, Assistant Corporation Counsel,
    of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


author: Justice Hatchett.

text:
    Frank Y. Coffin et al., Appellees, v. Lulu Kwasniewski et al., Appellants.
    Gen. No. 41,473.

      opinion filed March 31, 1941.
    John O. Wagner, for appellants; Boss & Berehem, Harold L. Beeve and Charles F. Grimes, for appellees.
   Opinion by

Justice Hatchett.

“Not to be published, in full.”


text:
    Gertrude B. Wolf, Appellee, v. Parker Holsman Company, Appellant.
    Gen. No. 41,483.
    opinion filed March 31, 1941.
    Hubbard, Baker & Rice, Sidney J. and Arthur Wolf, of counsel.
   Opinion by

Justice Hatchett.

“Not to be published in full.”


author: Justice Matchett:

text:
    Standard Federal Fire Insurance Company, v. Allied State Securities Corporation et al. George D. Thompson, Appellant, v. Chicago Title and Trust Company, Trustee, et al., Appellees.
    Gen. No. 41,518.

      opinion filed March 31, 1941;
    rehearing denied April 14, 1941.
    William H. Haight, for appellant; Edward 3ST. Sherburne, for appellee Edward A. Miller.
   Opinion by

Justice Matchett:

“Hot to be published in full.”


author: Mr. Presiding Justice O’Connor

text:
    Henry Liebundguth, Appellant, v. Russell Firebaugh, Appellee.
    Gen. No. 41,042.
    Opinion filed April 14, 1941.
    Bernard W. Mages, of Chicag’o, for appellant.
    Arthur Abraham, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the

opinion of the court.

Plaintiff brought an action against defendant to recover damages of $1,381' being the face value of three real estate bonds aggregating $1,100 and interest thereon. Defendant denied liability. There was a trial before the court without a jury, a finding and judgment in defendant’s favor and plaintiff appeals.

The record discloses that February 10, 1926, the owners of an apartment building located at the northwest corner of Sunnyside and Hermitage avenues, Chicago, executed a trust deed conveying* the premises to defendant to secure a bond issue of $90,000; that afterward plaintiff bought three of the bonds paying par for them, or $1,100; that Firebaugh and others whom he controlled brought about the execution of the trust deed and bonds. The bonds and interest were payable at defendant’s place of business. In 1929, defendant, as trustee, filed a suit in the superior court of Cook county to foreclose the lien of the trust deed and January 20, 1930, a decree of foreclosure was entered in which it was found there was $83,500 due the bondholders and other costs and expenses of foreclosure, making* a total indebtedness of $93,044.68; that February 13, 1930, the master sold the property to Firebaugh, as trustee, for $82,000; he bid in the property for the bondholders without the payment of any money or without the production of any bonds; .that some time thereafter Firebaugh, as trustee, assigned the master’s certificate of sale to Paul F. Rogge, who executed bonds aggregating $98,000 secured by a new trust deed on the same property in which Firebaugh. was also named as trustee, and afterward when the master’s deed issued a supplemental trust deed confirming the prior one was executed by Rogge who then quitclaimed the property to Ida Wagner, secretary of the bond and mortgage company which was controlled by Firebaugh. The foreclosure suit, the sale of the property and the execution of the new mortgage, etc., were all unknown to plaintiff who received his interest regularly from the bond and mortgage company until February 1932, when he called for payment of interest and was then informed of what had been done and that he had a right to exchange his bonds for new bonds of the $98,000 issue, which he refused to do. In 1937, Firebaugh, through his bond and mortgage company and counsel, organized a building corporation known as the 4500 North Hermitage Avenue Apartments Corporation, and thereafter Ida Wagner executed a quitclaim deed conveying the premises to the building corporation. There was a default in payment of the new bond issue and another foreclosure suit brought in the superior court to foreclose the lien of the trust deed and decree of foreclosure entered. Sometime thereafter the building corporation filed its petition for a reorganization under § 77B of the Bankruptcy Act in the District court of the United States in Chicago where the matter was heard, a plan of reorganization approved, by which the new bonds and the old bonds which had not been surrendered in exchange for new bonds were to share on a parity in the reorganization plan. The trust deeds were to be canceled and released and the building corporation to receive 8% of the stock to be issued by a new corporation to be organized pursuant to the plan of reorganization.

Plaintiff refused to exchange his bonds or to accept stock under the plan of reorganization approved by the Federal court. He contends he was damaged by the wrongful acts of Firebaugh in surrendering the master’s certificate and in causing the execution of the new bond issue of $98,000, which plaintiff contends was done without authority and was but a part of the scheme of Firebaugh to cheat and defraud the bondholders.

Defendant’s position is that after the foreclosure of the first bond issue and the sale of the property to him, as stated by his counsel, “In an attempt to reorganize the property the Master’s Certificate of Sale was assigned to Paul F. Bogge, admittedly the nominee of the Trustee and the new trust deed securing bonds aggregating the principal sum of $98,000 was placed on the property.

“It was then sought to exchange the new bonds for the old bonds. All of the bonds were exchanged except $23,500 of the old issue which remained unex-changed.
“Since all of the bondholders did not exchange the old bonds for the new bonds the proposed plan of voluntary reorganization was filed.”

We think what defendant did in surrendering the master’s certificate and causing the new trust deed and bond issue of $98,000 to be issued was wholly without authority and was so found by the United States Circuit Court of Appeals in an opinion, In the Matter of 4500 North Hermitage Avenue Apartments Corporation, filed March 20, 1941, growing out of the reorganization under § 77B of the Bankruptcy Act. We delayed disposing of the case at bar pending an opinion from the United States Circuit Court of Appeals. That court in its opinion said: “The Master making the sale issued a certificate of sale to Bussell Firebaugh, as trustee, under date of February 13, 1930. Before the period of redemption had expired, Firebaugh, as trustee, assigned such certificate to Paul F. Bogge without any consideration and without the knowledge or consent of the bondholders, or any of them, for whom he was holding such property as trustee. No authority for this transfer can be found in the trust deed and it is entirely beyond the powers created by that instrument. Shortly after the assignment, Bogge and his wife proceeded to execute bonds ... of $98,000. To secure the payment of such bonds they executed a trust deed on May 9, 1931 to Bussell Firebaugh, as trustee, . . . notwithstanding the facts that the period of redemption had not yet expired and that Rogge held no deed for such property, the Master’s deed not having been delivered to him until February 17, 1932. These bonds, both principal and interest, were to be paid at the office of The Bond & Mortgage Company, of which company Russell Fire-baugh was at that time president. . . . there was due under the former bond issue . . . the principal amount of only $79,500 or $18,500’ less than the principal amount” of the new issue. The court continues and states a number of facts as to what was done by Firebaugh and in answer to his contention that considerable money had been spent in the operation of the property and for legal expenses, etc., said: “In answer to this contention the evidence fully supports the contention of appellees that The Bond and Mortgage Company was operated by Russell Firebaugh, its president, and that all acts were done by and through him; that the company collected the rents from such property for some time both prior to and after the appointment of a receiver by the Superior Court in the foreclosure proceedings; that it had been reimbursed'for all expenditures; that it was, in fact, indebted to the bondholders of the Belvidere issue, [old issue] . . .

“It seems that Russell Firebaugh was the person who planned and executed all of the various transactions which finally resulted in appellant, Cloverdale State Bank, acquiring possession of these bonds, [some of the new bonds] The ramifications are so extensive that they are really difficult to comprehend; however, it is apparent that each move was preconceived by him with the ultimate purpose in mind of profiting by such transaction without regard to the interest of the owners of the property or of the bondholders. It was he who was named trustee in the Belvidere bond issue; it was he, through the company of which he was president, who sold these bonds to the investing public and collected the rent from the apartments for a considerable length of time; it was he, as trustee, who instituted the foreclosure proceedings in the Superior Court and obtained a decree of foreclosure and sale ... it was he, as trustee, who purchased the property at the foreclosure sale for-the benefit of the bondholders; it was he, as trustee, who received from the Master a certificate of sale for such property and within a short time thereafter transferred this certificate to Rogge without any authority so, to do, without consideration, in violation of his trust and within the period of redemption; it was he who was named trustee for the bondholders in the trust deed executed by Rogge in the Hermitage bond issue of $98,000, or $18,500 more than was necessary to retire the Belvidere issue; it was The Bond & Mortgage Company, of which he was president and had control, that retained possession of the excess bonds which included the bonds in question until they were pledged as collateral with his mother to secure the payment of a pre-existing debt evidenced by a promissory note of that company . . . but for which bonds no consideration was paid by either himself or the company ... it was he, together with the secretary of the company, Ida Wagner, who had authority to visit the safety deposit box of his mother.”

All of this and much more was said by the United States Circuit Court of Appeals in passing* on the claim filed in the bankruptcy court by the Cloverdale State Bank which claimed to own certain of the new bonds in holding* the claim was properly disallowed by the District court.

Counsel for plaintiff, in discussing* how plaintiff was damaged by the conduct of Firebaugh, and which we think is sustained by the record, says, “Plaintiff’s bonds are now part of an indebtedness of $106,000 instead of $82,000, said new indebtedness consisting of the Rogge mortgage” for “98,000 plus eight per cent for the purchase of the title of the 4500 North Hermitage Avenue Building Corporation, which means that this dummy corporation will be the owner of $24,000 in stock on a parity with the plaintiff’s bonds, without having paid one cent for the title or the bonds.”

Firebaugh’s conduct being wholly unauthorized and plaintiff having sustained damages as a result of such conduct, he is entitled to recover. Wertheimer v. Glanz, 277 Ill. App. 389. In that case suit was brought to recover $600, the face value of bonds which were secured by a trust deed on two pieces of property, one of which had been wrongfully released by the trustee, and it was held plaintiff was entitled to recover. We there said, in referring to Sherwood v. Saxton, 63 Mo. 78, a case where a trustee wrongfully released a trust deed: “The opinion says that the trustee in a deed of trust to secure an indebtedness is the agent of both parties, debtor and creditor, and his duties must be performed with the strictest impartiality and integrity; that if he is guilty of a breach of trust or an abuse of his discretionary powers he will be personally responsible to the party injured, and that he would not be justified in releasing any security unless it would be clearly to the advantage of the cestui que trust. . . .

“We think it is evident that it was to the hurt of the plaintiff and other bondholders when the trustee released the = more valuable of the two properties, leaving as security only the poorer property which, by the defendant’s own showing, is not worth the amount of the mortgage indebtedness. Clearly this was a breach of trust on the part of the trustee. . . .
“We see no reason to disturb the judgment, and it is affirmed. If this judgment is paid by defendant, in fairness the notes should be turned over to him so that he may proceed upon them as he may see fit. ’ ’

From what we have said we think it clear defendant’s contention that plaintiff’s suit is in effect “A bill for accounting against a trustee for alleged misfeasance in office” and that the municipal court has no jurisdiction of such inequitable proceedings cannot be sustained. Plaintiff’s action is for damages sustained by him through the wrongful conduct of the trustee in administering his trust.

The judgment of the municipal court of Chicago is reversed and judgment entered in this court for $1,381 in favor of plaintiff and against defendant, and as stated in the Wertheimer case, if this judgment is paid by defendant the three bonds should in fairness be turned over to defendant Firebaugh.

Judgment reversed and judgment here in favor of plaintiff.

Hatchett and MoSurely, JJ., concur.


text:
    Clara Doyle, Appellant, v. George Doyle, Appellee.
    Gen. No. 41,541.
    Opinion filed April 14, 1941.
    Henry W. Kenoe, of Chicago, for appellant.
    Milton J. Sabath, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

October 6,1937, plaintiff filed her complaint in chancery .against defendant for separate maintenance, in which she alleged they were married July 11, 1928, and as a result of such marriage two children were born, and that on account of defendant’s cruelty she was obliged to leave him August 31,1937.

July 13, 1939, a decree awarding her separate maintenance was entered in which it was found defendant had, without cause, deserted her; She was given the custody and control of the two children aged 7 and 5, and awarded $780 per year for the support of herself and the children, payable in weekly installments of $15. The decree provided that defendant, the father, might see the children Sunday afternoons and at other specified times and that some third person should call for the children, take them to defendant and return them to plaintiff.

July 24, 1939, defendant filed a petition alleging plaintiff had refused to permit him to visit the children, as provided for in the decree, and prayed that a rule be entered on plaintiff to show why she should not be adjudged in contempt of court. The matter was continued and August 28, plaintiff filed a petition alleging defendant was behind in the payments required by the decree and asked for a rule on him to show cause why he should not be held in contempt of court. On the same day an order was entered that defendant show cause why he was not in contempt of court for failure to comply with the terms of the decree, and the matter was continued as was also the hearing on defendant’s petition. September 28, an order was entered which recites the coming on for hearing of the petitions of defendant and plaintiff above mentioned and it was ordered that by reason of Mrs. Doyle’s failure to permit the father to visit the children and to have their custody at the times provided for in the decree that payments which had not been made by him were to be made and received by the attorneys representing both parties, upon condition that plaintiff permit defendant to have the children. The further hearing on the two petitions was continued.

October 17, 1939, defendant filed another petition alleging inter alia he had not been permitted the privilege of seeing the children and having them with him; that plaintiff had poisoned the children’s minds so that they did not want to see him. The prayer of the petition was that-he be given the sole care, custody and control of the children subject to plaintiff’s rights to visit them on certain days. The matter was continued from time to time and November 22, plaintiff filed a petition for a change of venue from Judge Nelson. On the same day the court entered an order denying the prayer of the petition. Thereafter a number of orders were entered continuing the petitions from time to time, and February 13,1940, an order was entered on motion of attorney for defendant for the custody of the children. The order recites the court heard the evidence of all parties and it was ordered that the decree be modified and the custody of the children be “awarded to The Mother of Sorrows Institute at 13811 S. Western Avenue” the costs of maintenance for the children to be paid to the institute by defendant.

March 20, plaintiff filed a petition to vacate the order of February 13. The matter was finally heard July 2, and the prayer of the petition was denied. It is from this order that plaintiff appeals.

On the hearing July 2, it appears from the report of the proceedings that plaintiff’s petition (that defendant be adjudged in contempt for failure to pay as required by the decree) and plaintiff’s petition regarding the custody of the children were both under consideration. Court and counsel reviewed some of the prior proceedings from which it appears defendant had theretofore agreed to waive his right to visit the children if a divorce were granted. The court stated he thought this had been agreed to.

“The Court: I thought that would relieve the situation. She would have sole custody and no bother about him coming around visiting. The facts are that he has another woman and that is why the separate maintenance suit comes on. . . . she is bitter and jealous and won’t let him see the children and won’t obey the court or her attorney or listen to any counsel. . . . I don’t want to send her to the County Jail. I thought I would discipline her by taking the children away from her.” After further discussion counsel for defendant said: “We don’t want a divorce. I make that statement right now. We want the children.” And later continuing, counsel for plaintiff said: “In none of these proceedings has Your Honor found her to be unfit. It is just a matter of visitation. The Court: Not unfit from a moral standpoint of proper physical care of the children. She is an indulgent mother so far as I know. The record is clean and clear, but she is so stubborn and she defies the court. She has her husband tied by a decree of separate maintenance. She won’t let him see the children.”

We think it clear the purpose of defendant’s actions, as shown by the record after the decree was entered, was to badger plaintiff so as to compel her to secure a divorce. The legislature has passed the laws governing separate maintenance and divorce and they must be followed. Such matters are peculiarly and entirely within the control of the legislature. The legislature having spoken, it is the duty of the court to enforce the law as enacted. We think the action of the court in taking the custody of the children from the mother and placing them in an institution was unwarranted. Of course plaintiff must comply with the terms of the decree or she will be in contempt of court.

The order of July 2, is reversed as is the order taking the custody of the children from plaintiff.

Order reversed.

Matchett and McSurely, JJ., concur.


author: Mr. Justice McSurely Mr. Presiding Justice O’Connor

text:
    Lawrence M. Winters and Chicago Title and Trust Company, Trustee, Appellants, v. Rose Polin, Appellee.
    Gen. No. 41,509.

      Opinion filed April 14, 1941.
    Stevens & Stevens, of Chicago, for appellants; George M. Stevens and George M. Stevens, Jr., of counsel.
    Harold A. Harris and Benjamin Weinberg, both of Chicago, for appellee; Benjamin Weinberg, of -counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a complaint seeking specific performance of a contract of sale. Plaintiff Winters and defendant entered into a contract on March 1, 1939, for the sale by plaintiff to her of the real property and building at 1244 Independence boulevard in Chicago; the contract consisted of two letters: defendant’s letter, offering to buy, with $500 as earnest money to be returned if good title was not furnished on or before March 20, 1939; and plaintiff Winters’ letter of acceptance, reciting that the total purchase price was $6,250, that $500 had been paid as earnest money and the balance of $5,750 to be paid to plaintiff upon delivery of a deed showing good title, free and clear of all liens and encumbrances, together with a Chicago Title and Trust Company title guaranty policy.

Plaintiffs filed a complaint asserting that they had fully complied with their contract and asked for a decree of specific performance on the part of defendant. Defendant answered that plaintiffs were unable at all times to tender a deed to the entire property by reason of the encroachment of two bay windows on the building referred to in the contract which extend over the south line of the premises on to the adjoining lot. Defendant also filed a counterclaim seeking the return of the $500 earnest money deposited by her and also compensation for her attorneys’ fees and other expenses and costs incurred by reason of her reliance upon the terms of the contract.

After hearing evidence the chancellor ordered that plaintiffs’ complaint be dismissed, and also the counterclaim, as being without equity. The order also provided that either party might file any action at law for relief against the other party growing out of the transaction.

The evidence showed that March 13, 1939, the Chicago Title & Trust Co. sent its letter of opinion to plaintiff Winters stating they were prepared to issue their guaranty policy, subject to the usual terms and conditions. The first of these conditions is subject to “rights or claims of parties in possession not shown of record, and questions of survey.” This letter was sent by Winters to the attorney for defendant.

Apparently a survey of the premises was then made by which it was shown that two bay windows, which were a permanent part of Winters’ building, encroached on the adjacent lot to the south. The encroachment of one of these windows was 9.32 inches, and the other, 4.08 inches. These encroachments were noted in writing on the opinion letter of the Chicago Title & Trust Co., dated March 13, 1939.

Counsel for plaintiffs argue that these encroachments were immaterial defects and technical in their nature and will not be permitted to defeat a decree for specific performance. To this argument counsel for defendant cite a large number of cases dealing with encroachments of buildings from one inch to a foot or more. In all of these it was held that such encroachments on adjoining city land were not trivial and they clearly affected the marketability of the title so as to require dismissal of a complaint for specific perform- ' anee. Vassar Holding Co. v. Wuensch, 100 N. J. Eq. 147; Pasternack v. Alter, 95 N. J. Eq. 377; Sulk v. Tumulty, 77 N. J. Eq. 97; Hennig v. Smith, 151 N. Y. S. 444; Meadows v. Michel, 135 App. Div. 213, 120 N. Y. S. 319 and 144 App. Div. 927, 130 N. Y. S. 57; Snow v. Monk, 81 App. Div. 206, 80 N. Y. S. 719; Stevenson v. Fox, 40 App. Div. 354, 57 N. Y. S. 1094; Arnstein v. Burroughs, 27 N. Y. S. 958.

A mandatory injunction requiring removal of walls encroaching on adjoining property was granted in Antillia Protective Ass’n v. Wolfsohn, 244 Ill. App. 71, where the encroachment was 8% inches, and in Pradelt v. Lewis, 297 Ill. 374, 377, where it was about 4% inches. In both of these cases the encroachments were held to be substantial and not trivial. There are also a number of cases in this State holding that a court of equity will not force on a purchaser a title which he may be required to engage in litigation to defend. Hayne v. Fenton, 321 Ill. 442, 447; Baker v. Baker, 284 Ill. 537, 540; Smith v. Hunter, 241 Ill. 514, 520. And it has also been held that specific performance should not be granted where title is doubtful. Cobb v. Willrett, 313 Ill. 92; Weberpals v. Jenny, 300 Ill. 145, 148. We are of the opinion the encroachments in question were substantial and not trivial, and seriously affected the marketability of the title.

Upon receiving the letter of opinion from defendant’s counsel noting the encroachments, plaintiff Winters procured from the Chicago Title & Trust Co. another letter, dated December 12, 1939, in which the encroachment of the bay windows in question over the south line was marked "waived.” Subsequently defendant advised Winters that the property was not in as good shape as she thought it was and she would not be willing to pay $6,250 but would pay $5,000. Plaintiffs refused to accept this and thereupon filed this complaint seeking specific performance.

Plaintiffs state that defendant owned the adjoining property to the south of the premises in question and the encroachments of the bay windows were over her property. It is argued,, therefore, that any rights she might have as the owner of the premises in question (1244 Independence boulevard) were merged in her ownership of the lot to the south. Although defendant’s counsel present certain conveyances which it is claimed show she was not the owner of the adjoining property, by reason of a certain quitclaim deed of this to her brother-in-law, we are inclined to hold she was the real owner of the adjoining property.

But we are also of the opinion this does not affect the question presented. Assuming she owned the adjoining property and sold it, and the purchaser brought suit to have the encroachments on his property removed, if defendant owned the encroaching property how could she defend this action except by litigation? We know of no rule that compels a person, against his wishes, to buy a law suit.

How could there be any merger until defendant has the legal title to the encroaching property? — and she has not received any deed to this. In a merger the whole title, legal as well as equitable, must unite in the same person.

Moreover, equity will not permit a merger which will result in injury and work injustice to the owner. Defendant was unaware of the encroaching bay windows before the survey. Plaintiffs cannot deliver title to these encroachments, and defendant, if she bought the property, would be compelled to pay the value of the encroached land or defend an action to remove the encroachments. As was said in Dunkum v. Maceck Bldg. Corp., 256 N. Y. 275, 281: “The doctrine of merger has never been favored in equity and there the estates will be held to be separate when justice requires it and such was the intention of the parties. . . . Equity will prevent a merger whenever it will result in an injury to the owner and work injustice to him . . . .” There was no merger in the instant case.

Something is said in the brief for plaintiffs suggesting that a prescriptive right to the encroachments has accrued as they have existed for over 20 years. This point was not made in the points and authorities. The only evidence touching an encroachment for 20 years was the testimony of Joseph W. Schulman, which is not clear as to the dates, but tended to show he owned both properties for some 10 years prior to 1930> so there was no adverse encroachment for a period of 20 years. Moreover, there is no evidence that either defendant, Schulman or any other owner of either of the properties had any knowledge of the encroachment during 20 years. However, this at most only suggests how defendant might present a defense to any claim by an owner of the adjacent lot on the south, and as we have said, defendant was not bound to be subjected to the chances of litigation.

It is said plaintiffs agreed only to furnish defendant a guaranty policy guaranteeing title to the property. The subject matter of the contracts of purchase and sale was “1244 Independence Boulevard” and the policy proposed did not guarantee all of this property. It did not guarantee that part which encroached on the adjoining lot. In fact, Mr. Bilger, who describes himself as title officer for the Chicago Title and Trust Co., and whose name is attached to the “waiver” to the objection of the encroachments, testified that the policy which his company would issue would not guarantee questions of survey; that if defendant were to accept tbip policy and sustain a loss with reference to the encroachments in question, she would not have recourse to the Chicago Title and Trust Co. under the terms of the guaranty policy. This was confirmed by the testimony of George B. Allen, a title attorney for the Chicago Title and Trust Co. and so employed for 21 years. In answer to the question as to whether, if defendant should sustain a loss by reason of the encroachments referred to, she could have recourse to the Chicago Title and Trust Co., he answered, “No, she would not.” In the face of this situation, where the--officials of the guaranty company state their policy did not cover any loss by reason of the encroachments, by what equitable principles was defendant bound to take the property, sub- ■ ject to possible law suits and losses?

It might be noted that although the officials of the guaranty company disclaimed any liability for losses occasioned by the encroachments, the objection to them which was called to their attention by letter was not waived by the company until three days after this suit was filed. The sufficiency of the guaranty policy is to be determined by the date fixed by the contract for closing the deal and not some time subsequent to the filing of suit for specific performance.

Having in mind the well-established maxim that equity will not compel one to buy a law suit, upon the record before us we are of the opinion the chancellor properly ordered the dismissal of plaintiffs’ suit for want of equity.

Defendant has filed notice of a cross appeal from the action of the trial court in dismissing her counterclaim and in refusing to award her costs. We are of the opinion this was error. By the terms of the contract of purchase and sale the earnest money deposited of $500 was to be returned to defendant, provided a guaranty policy showing good and sufficient title to the property was not furnished. As we have seen, the policy did not cover that part of the building encroaching on the adjoining lot. There was testimony that defendant had incurred costs and expenses incident to this transaction and litigation, but we find no evidence to support the reasonableness of these costs.

The order of dismissal was without prejudice to either party to bring any action at law against the other for relief growing out of the transactions and relations of the parties to the suit. We affirm that portion of the decree which dismissed the complaint as without equity. The order as to the counterclaim is reversed and the cause is remanded to the circuit court with directions to grant defendant such relief as the facts require.

Affirmed in part and reversed in part and remanded with directions.

Hatchett, J., concurs.

Mr. Presiding Justice O’Connor

specially concurring : I think defendant should be awarded the $500 and court costs and nothing more.


author: Mr. Justice McSubely

text:
    People of the State of Illinois ex rel. Edgar B. Elder, Appellant, v. George L. Quilici, Appellee.
    Gen. No. 41,521.

      Opinion filed April 14, 1941.
    Thomas J. Courtney, State’s Attorney, and J. A. Cobbey and D. Ellwood Davis, both of Chicago, for appellant; J. A. Cobbey and D. Ellwood Davis, of counsel.
    Arthur J. Goldberg and Arthur A. Sullivan, both of Chicago, for appellee.
   Mr. Justice McSubely

delivered the opinion of the court.

This is a quo warranto proceeding brought at the request and on the relation of Edgar B. Elder, who was defeated by defendant at an election on June 3, 1940, to fill a vacancy in the municipal court bench of Chicago. The gist of the action is that this election was null and void in that it was conducted in only 648 out of a total of 3,648 regularly established election precincts in the city of Chicago.

Judge Graber resigned as an associate judge of the municipal court June 13,1939, thus creating a vacancy; his unexpired term was for more than one year.

Section 9 of the Municipal Court Act (Ill. Rev. Stat. 1939, eh. 37, par. 364 [Jones Ill. Stats. Ann. 108.034]) provides that “. . . Vacancies in the office of chief justice or associate judge of the Municipal Court shall be filled by election at the regular municipal, judicial or other general election which shall occur next after a period of sixty (60) days from the time such vacancies respectively occur, but where the unexpired term does not exceed one year, the vacancy shall be filled by appointment by the Governor.” The next judicial election following the vacancy caused by the resignation of Judge Graber was June 3, 1940, when the election of six judges of the superior court of Cook county was scheduled. This election was a regular election for the full terms of the six judges. At this election the relator and the defendant, having been duly nominated by their respective parties to fill the vacancy in the municipal court, were also voted upon.

As there were only six candidates for the superior court there was no contest for these positions. The relator argues that it was not a regular judicial election, as “election” means “the act of choosing” which is not present where there is no contest, and therefore the mandatory provision of the act for filling vacancies in the municipal court at the next regular election does not apply. We find no authority for this contention. The election of the superior court judges was regular in that it conformed to the time fixed by law, regardless of whether there was any contest. A regular election has been defined as ‘£ one which recurs at stated intervals as fixed by law; it is one which occurs at stated intervals without any superinducing cause other than the efflux of time. As otherwise defined, such an election is one held to select an officer to succeed to the office upon the expiration of the full term of the incumbent.” 18 Am. Jur. (Elections) § 5. In Kelso v. Cook, 184 Ind. 173, it was held that the term “general election” means “the selection of officers to serve after the expirations of terms of former ones.”

The election of the judges of the superior court held June 3, 1940, was a regular election, at a time fixed by statute. Ill. Rev. Stat. 1939, ch. 46, par. 14a, § 1 [Jones Ill. Stats. Ann. 36.130(1)]. This being so, under the mandate of section 9 of the Municipal Court Act the election to fill the vacancy in the municipal court must also be held on that date, which was the next regular election after a period of 60 days from the time of the vacancy.

Relator concedes that if the only persons elected at this time were the superior court judges, the Board of Election Commissioners had the power to combine election precincts under section 7, article 2 of the City Election Act (eh. 46, par. 180). This provides that whenever the total number of candidates for judge-ships nominated by all the political parties does not exceed the number of such judges to be elected, the election commissioners may determine the number of voting precincts without reference to the number of qualified voters therein. The Board of Election Commissioners were thus faced with the question as to whether they should open the polling places in each of the 3,648 precincts in the city of Chicago, at a cost estimated at approximately $300,000, to fill the two-year vacancy in the municipal court. It would be conceded by everyone that the Board of Election Commissioners, in reducing the voting precincts to 648, effected a very substantial financial saving. By combining these polling places into the smaller number, no qualified voter was disfranchised, and no disqualified voter was permitted to vote and no fraud was perpetrated by the board. Thus its action should be upheld unless there is convincing authority that such action was invalid and void.

Recurring again to the provision in the Municipal Court Act concerning vacancies among the associate judges of the municipal court, the language clearly is mandatory that such vacancies shall be filled by election in the regular judicial election occurring after a period of 60 days from the time such vacancy occurred. We need spend no time in arguing as to the meaning of the word “at” the regular judicial election. It clearly means the vacancy shall be filled “in” the regular judicial election. Upson v. Almand, 190 Ga. 376. We are of the opinion that under section 7, article 2 of the City Election Act, the Board of Election Commissioners had the power to determine the number of voting precincts to be established in the city of Chicago for the election of superior court judges on June 3, and for the municipal court vacancy, which was part of the judicial election of that day, notwithstanding there were two candidates for the municipal court vacancy. The election was concededly valid as to the superior court judges. It would seem to follow that the election for the municipal court vacancy was also valid, as it was held in accordance with the provision in section 9 of the Municipal Court Act.

Moreover, there is authority for holding that even if the Board of Election Commissioners improperly combined election precincts in the election of June 3, this would be a mere irregularity which would not void the election. In People ex rel. Agnew v. Graham, 267 Ill. 426, the right of defendants to exercise the offices of mayor and aldermen of the city of Earville was challenged in a quo warranto proceeding. The city was made up of three wards; at the election in which defendants were elected, certain of the defendants were elected aldermen of the first and second wards, but only one polling place was established for the entire city and this in the third ward. It was contended that under the law a polling place had to be established in each ward. The court held the establishment of the single polling place for the entire city was a mere irregularity which would not avoid , the election where no legally qualified voter was disfranchised or any disqualified voter permitted to vote; that as the election laws contained no express provision declaring void an election held at a polling place outside of the voting precinct, the election laws would be construed to be

directory and not mandatory when challenged after the election. The opinion said (p. 440): “In recent years the legality of votes where the polling place has been located at a place convenient for the voters, by the proper officers, only a short distance outside of the election district, has been passed upon by the courts in several of the States. The courts of last resort in the majority of these cases have held that where it was shown that no legal voter was thereby deprived of his vote and the location was not selected from any improper motive, no fraud or other harm being shown or charged, such location of a polling place would not avoid the election.” [Citing many cases.] And (pp. 443, 444) that where the spirit of the election law is not violated and when no legal voter has been deprived of his vote and no harm or injury has been done to anyone, literal compliance with prescribed forms will not be required. The opinion is quite lengthy and comprehensive and repeatedly states that an election will not be held invalid because the polling places were not properly located. Another lengthy decision treating the same subject is Kerlin v. City of Devils Lake, 25 N. D. 207, 215, 216. There the statute plainly provided that the city authorities should provide polling places at some place within each ward, but the statute was not followed. The court said, “At first blush, and from abstract reasoning without a careful investigation of the many adjudications throwing light on the question before us, one would likely conclude that the election was void. But research discloses that the great weight of authority, if not all the authority, is the other way, and that public policy enters into the question. ’ ’ And the opinion concluded that when the statute does not in express terms declare such an election shall be void it will be sustained, “and the violation of statute will be treated as an irregularity, going to the form, instead of to the substance, where, from all the facts, the court does conclude that, in spite of the departure from statutory requirements, a full and fair ballot has been cast and a true and fair return of the entire election has been canvassed and made.” Other cases hold in general terms that statutory provisions regulating the conduct of an election are deemed directory after an election in which no improper voting has occurred. People v. Becker, 179 Ill. App. 446, 450, 451; Simons v. People, 119 Ill. 617, 623; Davis v. State, 75 Tex. 420, 431, 433; Petition of Clee, 119 N. J. L. 310, 321; State ex rel. Brown v. Town of Westport, 116 Mo. 582, 591; Ex parte White, 33 Tex. Crim. Rep. 594, 28 S. W. 542. See also People ex rel. Cole v. Kinsey, 294 Ill. 530, 531, where it was said that an irregularity should not require the election to be held void, as the irregularity did not interfere with the result of the election. Waters v. Heaton, 364 Ill. 150, 160, is to the same effect, as are a number of other decided cases in this State. Ackerman v. Haenck, 147 Ill. 514, 519; Schuler v. Hogan, 168 Ill. 369, 376; Dale v. Irwin, 78 Ill. 170, 180; Cleland v. Porter, 74 Ill. 76; People v. Sackett, 351 Ill. 363, 377; Tucker v. Coleman, 310 Ill. 450.

Relator argues that the election of June 3 was not a “free and equal” election as provided for by the constitution of Illinois. In Moran v. Bowley, 347 Ill. 148, 162, a similar point was made and the court held that “An election is free where the voters are exposed to no intimidation or improper influence and where each yoter is allowed to cast his ballot as his own conscience dictates. . . . Elections are equal when the vote of each voter is equal in its influence upon the result to the vote of every other elector — where each ballot is as effective as every other ballot.” There is no charge that any voter in the instant election of June 3, 1940, was intimidated or denied his right to cast his ballot.

Relator also says the Board of Election Commissioners, by combining the polling places by virtue of a resolution of May 9, 1940, which was 25 days before the election of June 3, violated section 1, article 7 of the Illinois constitution which provides that there must be a residence of 30 days in the precinct as a qualification for voting. The resolution of the board did not deny to any elector who had resided in an election precinct 30 days next preceding June 3 the right to vote. All the resolution did was to designate a common polling place for several election precincts. In City of Chicago v. People, 80 Ill. 496, 506, it was held that the changing of a polling place within the 30-day period prior to an election does not invalidate the election. See also Village of Averyville v. City of Peoria, 335 Ill. 106, 117, 118. A similar point was considered in Welsh v. Shumway, 232 Ill. 54, cited by the relator. It was held (p. 74) that the court would not be justified in holding the votes were illegal because of the change of district. Moreover, that case involved an election contest in which some votes were challenged and not a quo warranto proceeding attempting to invalidate an entire election.

Although relator argues to the contrary, it was shown that timely notice was given of the time and place of the election of June 3. Section 19 of article 2 of the City Election Law (Ill. Rev. Stat. 1939, ch. 46, par. 192 [Jones Ill. Stats. Ann. 43.283]) requires the board “to give timely notice through the press of the time and place ... of election in each precinct. ...” It is stipulated that an official notice of the election of June 3,1940, listing the polling places and the offices to be filled, was published in the Chicago Herald-American, a newspaper of general circulation published in the city of Chicago. In addition the board caused to be posted in each of the 3,648 precincts in Chicago an official notice of the election to be held June 3 at the polling places selected by the board, and also caused a second printed notice to voters to be posted in the 3,000 precincts of the city wherein no polling places were open on June 3, which notice designated the location of the polling place of the voting area of which the precinct wherein the notice posted was a part. And also a third notice was posted in each of the 648 polling-. places established for the election on June 3, designating the precincts which were combined into the respective voting areas for which the 648 polling places were open. Moreover, mimeographed lists of voting areas and the locations of the polling places were prepared for distribution to any persons who might make inquiries at the Board of Election Commissioners. In addition to this the stipulation recites that the metropolitan newspapers of Chicago, subsequent to the adoption on May 9, of the resolution combining the number of polling places to be opened on June 3, published these items from time to time. The record shows beyond doubt that adequate and timely notice was given to the electorate of the .reductions of the voting precincts by the board.

The relator had ample opportunity, before the election, to attempt to compel the board by mandamus to open all the precinct polling places. He stood by and took no action in this respect until the election had been held, which resulted in his defeat by a majority of 197,000 votes. In People ex rel. Earley v. Bierman, 249 Ill. App. 217, quo warranto proceedings were brought to oust defendant from the office of police magistrate; it was charged the election was illegal in that the names of the relator and the defendant appeared on illegal ballots and defendant was disqualified from holding the office of police magistrate, as, at the time of his election, he was a justice of the peace and could not hold both offices at the same time. It was held-that, knowing all these facts, the relator, participated in the primary, election and took no . steps by mandamus or otherwise to have the names of the candidates properly placed upon the ballots.' The. opinion (pp. 219, 220) says: “If he had received a majority of the votes cast and the conditions here were reversed, in all probability, he would as strenuously insist on his right to hold the office as he is now in attempting to oust his successful opponent.” This language is pertinent to the instant case.

We hold the election of June 3, 1940, at which defendant was elected, was a valid election, and that he is lawfully holding and executing the office of associate judge of the municipal court.

The judgment of the trial court, in dismissing the suit is affirmed.

Judgment affirmed.

O’Cohhor, P. J., and Hatchett, J., concur.


author: Mb,. Justice Matchett

text:
    Harold Priess, Appellant, v. Acme Mosaic Terrazzo Company, Inc., Appellee.
    Gen. No. 41,534.
    Opinion filed April 14, 1941.
    David H. Caplow, of Chicago, for appellant; Erwin H. Pearl, of Chicago, of counsel.
    No appearance for appellee.
   Mb,. Justice Matchett

delivered the opinion of the court.

Plaintiff sued in mandamus to compel the transfer of 68 shares of stock to him on the books of the defendant corporation. Defendant answered the complaint and amendments of it. Plaintiff filed a replication. There was a trial by the court on stipulation of facts and evidence with a finding for defendant. The suit was dismissed and plaintiff appeals. Defendant has not appeared in this court to support the judgment.

Defendant is an Illinois corporation. October 19, 1928, the corporation (acting through its president and secretary) issued in the name of Wendell R Clark certificates Nos. 33 and 36 for 34 shares each of the capital stock of the corporation. Each certificate states that the stock represented by it is “fully paid and non-assessable transferable only on the books of this corporation in person or by attorney upon the surrender of this certificate properly endorsed.” The certificates are each indorsed on the back by Wendell R Clark to plaintiff, Harold Priess.

By deposition O. E. Quinton testified that October 19,1928, Genuvino Di Mayo and Albert Narduzzo (who issued the certificates) were respectively president and secretary of the defendant corporation; that Wendell R Clark was a friend of Quinton, who was vice president of the Harbor State Bank; that Quinton performed services for the defendant corporation in consideration of which these certificates of stock, at the request of Quinton, were issued to Clark as his nominee; that November 2, 1928, Clark indorsed the stock certificates (his signature being witnessed by Florence Kollock) and delivered them to David H. Caplow, to whom Quinton was indebted; that Caplow was indebted to plaintiff, Harold Priess, who was associated with him in the practice of the law, and in consideration of what he owed the stock was delivered, so indorsed, to plaintiff Priess. Clark did not pay anything for the shares. He was the nominee of Quinton. Quinton says he (Quinton) was the real owner and the only consideration for the issue of the stock in the name of Clark was services rendered by Quinton to defendant. Quinton says he would have caused the stock to be transferred to any other person if Caplow had requested.

The defense set up in the answer was that the stock was not sold to Quinton but issued at his request to Clark, a fictitious person, in order that it might be held by Quinton until a loan which defendant obtained from a bank should be paid, and when this loan was paid the certificates were to be returned; that the loan was paid and defendant asked Quinton to return the stock; that Quinton represented he had misplaced or lost it but promised to search and return when found; that the stock was never returned to defendant and September 1, 1933, by resolution of the stockholders and directors, the certificates were canceled; that defendant heard nothing- more about the lost certificates until thé latter part of 1934, when an attorney representing plaintiff demanded in his behalf the transfer of the stock to plaintiff’s name which was refused.

The answer denied plaintiff is a bona fide transferee of the certificates for value, but on the contrary asserts that he conspired with Quinton to obtain the stock by fraud; that the issuance of the certificates was without consideration and not used in furtherance of any loan but wrongfully used by Quinton in violation of his pledge for his own personal use, which was a fraud and contrary to public policy and the laws of Illinois with reference to banks.

There was evidence on the hearing of the issuance of the certificates at Quinton’s request and upon promises made by him as set up in the answer; that he informed defendant the certificates had been lost or misplaced (which Quinton denies) and that at a meeting of the stockholders and directors held in 1933, a resolution was passed directing these certificates to be canceled and others issued therefor and declaring the original issue of the certificates illegal and void. There is no evidence tending to show that Caplow or Clark at any time had notice of defendant’s equities, and as already stated defendant has not appeared in this court.

Section 1 of the Uniform Stock Transfer Act (Ill. Rev. Stat. 1939, ch. 32, par. 416, p. 911 [Jones Ill. Stats. Ann. 32.195]) provides :

‘ ‘ Title to a certificate and to the shares represented thereby can be transferred only: (a) By delivery of the certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or .. .”

Section 15 of the same act (p. 912, par. 430) provides:

“There shall be no lien in favor of a corporation upon the shares represented by a certificate issued by such corporation and there shall be no restriction upon the transfer of shares so represented by virtue of any by-laws of such corporation, or otherwise, unless the right of the corporation to such lien or the restriction is stated upon the certificate.”

There- was nothing on the face of either of these certificates tending to show that the person in whose name the certificates issued was not the owner. On the contrary the certificates expressly state that he is such owner and the stock is fully paid. There is no evidence tending to show plaintiff took the stock with notice of any facts indicating a defect in Clark’s title. There is no proof of conspiracy as alleged.

In United States Gypsum Co. v. Faroll, 296 Ill. App. 47, at p. 55, this court said:

“Even though only the bare custody of the stock certificate be intrusted to another who, in complete breach of his duty, disposes of them to an innocent purchaser, the title of the original owner is lost, and that, too, though this custody was obtained by deceit and fraudulent representations.”

The Uniform Transfer Act makes certificates of stock negotiable. Fletcher’s Cyclopedia Corporations, vol. 12, §§ 5478, 5479.

We hold plaintiff was entitled to a mandamus to compel the transfer of this stock to his name on the books of the corporation. The judgment will be reversed and the cause remanded with directions the writ issue.

Reversed and remaAided with directions.

O’Connor, P. J., and McSurely, J., concur.