author: Mr. Justice McSurely

text:
    Cyrena Lela Thomas, Administratrix of the Estate of Hiram Raymond Thomas, Deceased, Appellee, v. Ernest D. Buchanan, Appellant.
    Gen. No. 36,695.

      Opinion filed November 6, 1933.
    Rehearing denied November 20, 1933.
    McKenna, Harris & Schneider, for appellant; James J. McKenna and Abraham W. Brussell, of counsel.
    Erich E. Pacyna and Oscar M. Meusel, for appellee; Erich E. Pacyna, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

On the night of November 30, 1931, Hiram Thomas, while riding in an automobile owned and driven by Earl Anderson, was injured through a collision at a street intersection with an automobile owned and driven by the defendant; Mr. Thomas died from, the injuries received and his administratrix brought suit under the Injuries Act, Cahill’s St. ch. 70, and upon a trial before a jury had a verdict for $4,125; defendant appeals from the judgment on the verdict.

The accident happened in Niles Center, Cook county, at the intersection of Crawford avenue, which runs north, and Church street, which runs east. The automobile in which Mr. Thomas was riding was going east on Church street; the automobile driven by defendant was going north on Crawford avenue; the two automobiles collided at the intersection of the two streets. At about 200 feet from the intersection on each of the streets is a sign marked “Caution — Dangerous Intersection.” In Crawford avenue, about 30 feet south of the intersection was a rubber sign in the middle of the street about six inches high and 20 inches long, with a black background, with the word “Stop” in orange letters. There was an octagonal shaped sign with the words “Stop, State Boad” near the southeast corner of the intersection; this octagonal sign is about two by three feet, on a-seven-foot post; there were no lights at the intersection, the nearest light being on the east side' of Crawford, 200 feet south of Church street; it was a clear, dark night and the street pavements were dry. Thomas was sitting in the front seat on the right-hand side of Anderson, the driver; he was thrown from the automobile to the street pavement by the collision, and died the next day.

Defendant testified that he was driving north on Crawford at a speed of 30 or 35 miles an hour; that there were present with him in the car a Mr. O ’Brien and a Mr. Mammerow; defendant says that he had never driven along Crawford avenue before; that he saw neither of the stop signs at Church street and did not slacken-speed as he reached the intersection but kept right on; that there were no lights along Crawford; that it was just open country; defendant says he did not know that there was any crossroad at that place; that Mr. O’Brien sitting beside him had just called his attention to the other automobile coming east on Church street about three or four feet away, and then the crash occurred. Mr. O ’Brien testified •much to the same effect; that the lights on defendant’s car were lit and the witness did not observe any stop sign. Mr. Mammerow, being ill, did not testify. Whether or not defendant’s conduct was negligent was a question of fact to be decided by the jury.

Defendant argues that Thomas at the time of the accident was not riding as a guest in Anderson’s automobile, but that Anderson was driving as the agent of Thomas, and hence the general rule that a guest in an automobile cannot be held for the negligence of the driver is not applicable. Thomas was employed by an electric washing machine company in repairing and selling washing machines for his employer; most of his duties were outside of his employer’s shop; on this evening Thomas, with a coemployee, Clarence Conrad, delivered a washing machine at Anderson’s house and Thomas remained there to demonstrate it. Anderson testified that he and Thomas had a couple of glasses of home brew beer at his home; that Thomas wished to drive west, the other side of Crawford to sell a washing machine to a certain lady, and that as a favor to Thomas, Anderson took his automobile and drove Thomas to the place west of Crawford and on finding that the lady Thomas wished to see was not at home, they returned by way of Church street, when the accident happened at Crawford avenue. We do not see how the conclusion can be escaped that in the journey Anderson was acting as the agent and servant of Mr. Thomas. Anderson had no interest in the proposed sale of the washing machine which was the occasion of the trip west of Crawford. The trip-was solely for the benefit of Thomas. In Stoutz v. Nicoson, 270 Ill. App. 28, the court considered the relation between the owner and driver of an automobile. and the plaintiff, Mrs. Stoutz, who was riding with him. It appeared that the trip in which she was injured was for the purpose of obtaining some ice from an ice plant for the sole benefit of the plaintiff. The trial court excluded this evidence but the reviewing court held that the defendant had a right to prove that the driver was the agent of the plaintiff, as he was driving the car at her request and for her benefit, and, if proven, the negligence of the driver, if any, would be imputed to the plaintiff and she would have no right of recovery. In Hepps v. Bessemer & L. E. R. Co., 284 Pa. 479, the plaintiff was a butcher, and having orders to deliver goods to customers living some distance from his place of business, requested an acquaintance who owned an automobile to drive him to the delivery points; the owner of the automobile did so, when the accident happened. It was held that the driver of the car was plaintiff’s agent or servant, citing Schofield v. Director General of Railroads, 276 Pa. 508. Clearly, when an owner of an automobile drives with another, solely upon the business of this other, he is the agent and servant of the other and the negligence of the driver, if any, will be imputed to the other.

Was Anderson guilty of negligence which contributed to the accident? On leaving their destination west of Crawford avenue, Anderson drove east on Church street at the rate of 30 to 35 miles an hour; Thomas was sitting on his right; both were looking forward, watching the road; Anderson was familiar with Church street and knew there were no street lights at Crawford; when they were 100 to 150 feet away from the intersection Anderson saw defendant’s car approaching the intersection from the south on Crawford avenue when it was about 200 feet away from the intersection; Anderson says he saw the lights of defendant’s car and watched it from the time it ivas 200 feet down the street on Crawford until he, Anderson, came within five feet of it; that he kept his eyes constantly on defendant’s car during all of this time; he says that as he approached the intersection he slowed his car dowm to about 20 or 25 miles an hour, but that defendant kept on nearing the intersection at the rate of 35 miles an hour without slackening speed; Anderson’s brakes were in good condition and at a speed of 20 or 25 miles an hour he conld stop his car in about five feet; although he saw defendant’s car was not slackening speed, he kept right on until he was within five feet of defendant’s car, when he turned his wheels but was struck by the other car. Such conduct on the part of Anderson was clearly contributory negligence.

Plaintiff argues that Church street was a State road and that travelers on intersecting roads were bound to stop and yield the right of way to travelers on Church street. It is not definitely proven that Church street was a “State Road.” The sign bearing these words was erected by the Chicago Motor Club, by what authority does not appear. Yet if it were a “through” street and Anderson had the right of way at the intersection, it does not follow that he might continue onward wholly regardless of any other automobiles approaching the intersection. A driver must always look and listen for the approach of other vehicles at such points, and must have his car under such control as to avoid accidents which might have been foreseen in the exercise of ordinary care. Anderson saw the other car approaching the intersection without slackening its speed of 35 miles an hour, and in the exercise of ordinary care he must have known that unless he himself took steps to avoid a collision an accident was inevitable. A driver of an automobile cannot rely upon his technical right of way to relieve himself of the duty at all times of exercising ordinary care to avoid an accident. The public safety must always dominate every such situation. To this effect is Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154, where the court said: “No one can assume that there will not be violations of the law or negligence of others and offer the presumption as an excuse of failure to exercise care.” See also Goodman v. Chicago & E. I. Ry. Co., 248 Ill. App. 128; Jaroszewski v. Chicago Rys. Co., 241 Ill. App. 1; Specht v. Chicago City Ry. Co., 233 Ill. App. 384. In Thrapp v. Meyers, 114 Neb. 689, it is said one may have the right of way over traffic approaching an intersection, “but is not thereby relieved from the duty of exercising ordinary care to avoid accidents; therefore, if a situation is presented which, to an ordinarily prudent person in the position of the driver, would probably result in a collision if he exercised his technical right of way, it would be his duty to subordinate such right to the public safety.” In Alperdt v. Paige, 292 Pa. 1, where the plaintiff contended that he had superior rights at a, street intersection, the court said: ‘ This fact did not relieve him from his duty to use reasonable care under the circumstances to avoid a collision, and if it appears there was a failure to exercise common prudence, the consequences must be visited upon him, though the defendant was also negligent. ... It was his duty to avoid a collision, if possible, when he saw the danger, though the driver of the other vehicle was acting carelessly, and, if his conduct contributed to the accident, he cannot recover.” In Berry on Automobiles, 6th ed., vol. 1, pp. 886, 887, it is said: “The ‘right of way’ does not mean that the driver having such right may heedlessly cross the intersecting highway without giving any attention to vehicles moving thereon. It does not give him the exclusive control of the entire area of the intersection.” In Hooper v. Corliss, 146 Wash. 50, it was held that “the right of way given by the city ordinance is a relative right only, and does not justify one who is entitled to the rig’ht of way in asserting his rights when, by the exercise of due care, he can or should see that to do so is likely to cause an accident and injury to himself or another, and that one so insisting upon the exercise of his right of way under circumstances which would cause a reasonably prudent person not to do so, is guilty of negligence or contributory negligence, as the case may be.” We hold that the correct rule of law is as above stated. In proceeding to drive his automobile onward toward the other automobile while all the time seeing it in ample time to avoid a collision, but without taking any steps to do so until it was too late, Anderson was guilty of contributory negligence as a matter of law.-

As we have held that Anderson was on this occasion the agent and servant of Mr. Thomas, Anderson’s contributory negligence must be imputed to him, and therefore his administratrix cannot recover.

At the conclusion of the evidence defendant moved the court to direct the jury to find the defendant not guilty. This motion was denied. As we have indicated, the motion should have been allowed; as a matter of law there could be no recovery, and the judgment will therefore, be reversed without remanding the cause.

Reversed without remanding.

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


source: Caselaw Access Project

author: Mr. Justice McSurely delivered

license: Public Domain

text:
    L. G. Reese, Appellee, v. The Sanitary District of Chicago, Appellant.
    Gen. No. 36,772.
    Opinion filed November 6, 1933.

      William Rothmann, for appellant; Meyer C. Edelman, of counsel.
    George D. Sullivan and Mitchell Kilanowski, for appellee; Mitchell Kilanowski, of counsel.
   Mr. Justice McSurely delivered

the opinion of the court.

Plaintiff brought suit as the assignee of certain accounts of George B. Dietrich, seeking to recover for goods sold and delivered to defendant. In his statement he claimed $12,321.35; upon trial by the court plaintiff withdrew certain items and the court deducted $1,919 for overcharges and gave judgment for plaintiff for the balance of $9,839.35, from which defendant appeals.

It was sufficiently proven that the goods were ordered by defendant’s purchasing agent and received by it.

Defendant’s principal point is that the contracts for the purchase of the goods were made by defendant without soliciting bids, which it is said is required by statute, hence no liability can arise against defendant, a municipal corporation. The goods purchased are a miscellaneous lot of articles, consisting for the larger part of stationery, envelopes, letterheads and the like, also rubber boots, gloves, rubber matting, rubber hose, axe handles, mops, cuspidors, sponges, and like articles. Plaintiff argues that the statute requiring bids does not cover the purchase of such articles. The point is well taken. The statute is as follows:

“All contracts for work to be done by such municipality, the expense of which will exceed five hundred dollars, shall be let to the lowest responsible bidder therefor upon not less than ten days’ public notice of the terms and conditions upon which the contract is to be let having been given by publication ip a newspaper of general circulation published in said district and the said board shall have the power and authority to reject any and all bids and readvertise; . . . and that eight hours shall constitute a day’s work.” (Ca-hill’s Illinois Revised Statutes 1931, eh. 42, If 348, page 1207.)

It seems clear that this covers only “contracts for work to be done” by such municipality and not the purchase of such articles as above mentioned. The words, “work to be done” ordinarily imply some exertion of strength or physical or intellectual effort. In Webster’s dictionary the word “work” is defined as the general term for exertion or effort directed to an end. In a number of cases in other jurisdictions the words “work, materials and labor” in similar statutes were held inapplicable to the employment of auditors, to contracts for advertising, to the leasing of rooms and to contracts to furnish rubber hose to a fire department. Heston v. Atlantic City, 93 N. J. L. 317; Delker v. Board of Chosen Freeholders of Atlantic County, 90 N. J. L. 473; Davies v. New York City, 83 N. Y. 207; Public Ledger Co. v. Memphis, 93 Tenn. 77, 23 S. W. 51; City of Trenton v. Shaw, 49 N. J. L. 638; Bloomquist v. Isanti County, 152 Minn. 126, 188 N. W. 64. In Neal Publishing Co. v. Rolph, 169 Cal. 190, the supervisor of the city and county of San Francisco let a contract for a certain quantity of printed forms and blanks for use in various offices of the municipality ; the contract was attacked, charging the violation of the charter requirements which covered “every contract for work to be performed for the city and county. ’ ’ The court held that the contract for printed forms and blanks was not “for work” for the city and county within the meaning of the provision in the charter; that the contract was simply to furnish certain finished articles of merchandise, The opinion says;

“A contractor undertaking to sell and deliver to a city completed chattels or merchandise does not thereby undertake to perform ‘work’ for the city. The distinction, in this respect, between a contract or agreement for sale to a city and a contract for the doing of work therefor is so clear as hardly to require statement. In the one case, if any work on his part is done in the way of manufacture or preparing the chattels or merchandise necessary to be sold and delivered, either personally or through employees, it is work done solely for himself, and in no proper sense, for the city. His contract with the city is simply for the sale and delivery of the finished article, and until the delivery the city has no interest whatever in the property. In the other case he contracts to furnish labor or personal service directly to the city, as where he agrees to construct a building for the city for a stipulated sum, or where he agrees to grade or otherwise improve a,street belonging to the city, or to perform any other work for the city. Such contracts include the performance of work for the city.”

In section 1 of Cahill’s St. ch. 127, ¶ 1, State Contracts, the legislature provided specifically that stationery and printing paper furnished for the use of the State and printing ordered by the General Assembly shall be let by contract to the lowest bidder. In section 28 of chapter 127 it is provided that supplies for the various departments of the State, except in certain cases, shall be purchased in large quantities, contracts to be let to the lowest and best bidder. The. provision in the Sanitary District Act, Cahill’s St. ch. 42, ¶ 348, makes no such provisions but is confined to contracts for work.

Defendant’s counsel say that the words in the statute, “for work to be done by such municipality,” should be construed as meaning “for such municipality.” Whether the work was done “by” or “for” the municipality would make no difference for the statute clearly refers to work in the ordinary sense, of something produced by labor. This construction is emphasized by the last phrase of the statute, which reads, “and that eight hours shall constitute a day’s work. ’ ’ This manifestly refers to something produced by labor, otherwise the phrase is meaningless. The cases cited on this point by counsel for defendant are not in point. All of them are concerned with contracts for improvements involving work. We are asked to read into the statute a requirement for competitive bidding in the purchase of supplies. This is for the legislature and not for the courts to do. However, there is nothing in the statute which forbids soliciting such bids.

It appears that George B. Dietrich, who sold the goods, did business under five names — the Simplex Printing Company, the Superior Loose Leaf Company, the Continental Supply Company, the Great Western Manufacturing Company, and the Illinois Supply Company, none of which was shown to be a duly organized corporation.' The purchases were divided among these organizations covering a period from December, 1927, to December, 1928. Apparently each class of articles purchased was itemized separately, although in many instances they were made on the same day from the same concern. Defendant argues persuasively that these orders were deliberately split up into smaller amounts in order to evade the statutory requirement for competitive bidding. This may be true, but as we are holding that the statute requiring competitive bidding does not apply to such purchases the point is not decisive.

It is no doubt the law that an assignee of choses in action takes them subject to the same defenses as might be asserted against the original parties, and the case was tried upon that theory.

There was no reversible error in the ruling of the court upon the proffered testimony of the witnesses as to the values of the articles. The court’s ruling was based upon the failure of the witnesses to identify the particular articles they were asked to value. “Comparison of values betwreen the thing in question and others of different quality which are not involved in the litigation is not allowable for the purpose of calculating the value of the one in question. A witness cannot testify that a different article was worth a specified sum, and that the one in question was superior or inferior.” Abbott’s Trial Evidence, vol. 3, p. 547. The court, however, found there were overcharges and reduced plaintiff’s claim by over $1,900, from which we may conclude that the court gave proper consideration to the competent evidence as to the value of the articles.

Defendant’s counsel makes out a case which suggests the probability of an attempt at petty cheating in purchasing these supplies. We doubt if any statute could suppress this, especially where, as here, hundreds of articles were purchased ranging in price from $9 up.

We see no convincing reason for reversing the judgment, and it is affirmed.

Affirmed.

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


text:
    Marjorie Walker Barthelemy, Defendant in Error, v. Thelma Braun, Plaintiff in Error.
    Gen. No. 36,781.
    Opinion filed November 6, 1933.
    Rehearing denied November 20, 1933.
    Leo G. Hana and John Matthew Byrne, for plaintiff in error; Elmer F. Deneke, of counsel.
    Maxwell N. Andalman, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

By this writ of error defendant brings for review proceedings in the circuit court whereiu there was a judgment rendered agaiust her for $7,500 in an ex parte hearing in a suit to recover damages for alleged slander. After the term at which judgment was entered had passed, defendant made a motion to vacate and set aside the judgment, which.was denied; this motion is supported by an affidavit in which she denies . making the slanderous statements about the plaintiff as set forth in the declaration.

The case turns upon the validity of an order defaulting defendant for want of an appearance and plea.

There is no dispute as to the facts. Defendant was personally served with summons May 12, 1932; the declaration was filed June 10; defendant was therefore bound to respond to the June term, which commenced June 20, 1932. By Rule 1 of the circuit court all suits at law made returnable to any term of court where process has been served and declaration filed 10 days before the first day of the term, “defendant shall plead or demur before the opening of the court on the morning of the third day.” If defendant failed to appear and plead, plaintiff was entitled to default on the morning of June 22 and not before; but plaintiff secured an order on June 20 defaulting defendant for failure to appear and plead.

It is conceded that this order was prematurely entered and defendant argues that the judgment in the ex parte hearing subsequently had is consequently invalid. The judgment was entered January 24, 1933, and plaintiff earnestly argues that as defendant took no steps in the cause until the following March, when the motion was made to vacate the judgment, the premature default order was merely an irregularity which was in effect waived by defendant’s negligence. We are referred to no cases in which it has been held that the mere fact that a defendant does nothing after an invalid default order has been entered is a waiver of such irregularity and a ratification of the subsequent judgment. Counsel for the respective parties say that they find no decided case in Illinois which involves similar circumstances as are here presented. Defendant finds certain cases outside of this jurisdiction which seem to be in point. In Kinney v. Plymouth Rock Squab Co., 214 Fed. 766, on somewhat similar facts the court said that the plaintiff must comply with the statutory requirements and rules of court and until this is done no default or judgment by default can lawfully be entered against the defendant. In Quigley v. Ellenwood, 1 Cal. App. 626, the defendant had all of May 28th to file his appearance, but plaintiff took judgment on that day. The court said: “In taking a judgment by default the plaintiff acts at his peril. He must see that the law has been complied with and that the time for appearance has expired. Otherwise he takes the chances of having his judgment set aside or reversed.” ' In Hart & Co. v. Nixon & Co., 25 La. Ann. 136, personal service of summons was had on defendant who under the law was allowed 10 days after service to answer; a default for failure of defendant to appear was taken by plaintiff on the ninth day. In considering the validity of the judgment subsequently rendered the court said: “The default having been improperly entered there was no issue joined when the judgment was rendered. There was nothing, therefore, for the judgment to rest upon,” and the judgment of the trial court was set aside. See also the general statement in Corpus Juris, vol. 34, sec. 395, where it is said that neither a default nor a judgment by default can be taken against a defendant until after the expiration of the period prescribed for taking such a step. And Freeman in his work on Judgments, 5th ed., vol. 3, secs. 1288 and 1289, is to the same effect.

Plaintiff argues that defendant’s motion is under section 89 of the Practice Act, Cahill’s St. ch. 110, ¶ 89, which abolishes the writ of error coram nobis, and cites cases which hold that an error of law, such as this is, cannot be cured by such a motion. Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516. Undoubtedly this is the law, but defendant says, and properly, that this is not a motion under section 89, and, that while the lower court might have no power to set aside the judgment because of an error of law, the reviewing court before which the entire record is brought up by writ of error, has power to vacate the judgment. Drummer Creek Drain Dist. v. Roth, 244 Ill. 68. Defendant’s motion to vacate in the trial court was unnecessary, but may be considered as a protest without which plaintiff might argue that defendant waived any irregularity in the proceeding.

Plaintiff stresses the alleged negligence of the defendant in failing to attend to the case. In the affidavit supporting her motion to vacate defendant says that when she was served with summons she consulted an attorney, who advised her that she did not have to appear at the first term of court and that she must await summons for a further term, that relying on this, she took no further steps in the matter. However this may be, we think it was even the greater duty of plaintiff carefully to follow the rules of court before asking for an order of default. If defendant was negligent, plaintiff also was negligent in procuring prematurely the order of default.

We are inclined to hold that the cases from foreign jurisdictions, above cited, state the rule which should prevail in this jurisdiction. It would open the door to confusion to permit a defendant to be defaulted before he was required to appear and plead. We think that orderly procedure in the courts requires that a plaintiff who proceeds contrary to the rule in this respect must subsequently proceed at his peril and with the knowledge that any judgment based upon this premature order of default will be vacated and set aside upon review.

For the reasons above indicated we hold that the judgment must be reversed and the cause remanded with directions to the trial court to grant leave to the defendant to file her appearance and to plead to the declaration. .

Reversed and remanded with directions.

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


author: Mr. Justice O’Connor Matchett, P. J.,

text:
    Joseph E. Wassell, Jr., and Effie M. Wassell, Appellees, v. Pullman Trust and Savings Bank and Charles H. Brandt, Appellants.
    Gen. No. 36,648.
    Matchett, P. J., dissenting.
    Opinion filed November 6, 1933.
    Rehearing denied November 20, 1933.
    Michael Koch, for appellants; Francis J. Koch, of counsel.
    Henry F. Antes and Kellam Foster, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs brought an action against defendants to recover $400, their contention being that they had given their check for this amount, payable to the order of the county collector, to a concern engaged in securing tax reductions on real estate, to pay on account, of the tax levied against their land, but that the concern, without authority, used the check to pay a part of the taxes on defendants’ land. There was a trial before the court without a jury, finding and judgment in plaintiffs ’ favor for $400, and defendants appeal.

There is substantially no dispute as to the facts, most of them having been stipulated, and so far as it is necessary to state them here they are as follows: Plaintiffs owned two lots on West Division street, which is in the northwest part of Chicago; defendants owned a lot near 111th street, on the south side of Chicago, on which the taxes were unpaid. About September 21, 1931, plaintiffs employed the National Tax Appraisals, Inc., to endeavor to procure a reduction of the taxes for 1929 on plaintiffs’ property. It seems to have been the practice in such cases that part payment of the taxes should first be made, and on September 21, 1931, plaintiffs obtained a cashier’s check for $400, payable to the order of the county collector, and delivered it to the Appraisals concern to pay on account of the 1929 taxes on plaintiffs’ property. About the same time defendants also employed the Appraisals concern for the purpose of having the taxes reduced on their property, and two months thereafter, November 21, 1931, drew and delivered their check to the order of the Appraisals concern for $400 to be used by the Appraisals concern in part payment of defendants’ taxes. Two days thereafter, November 23, 1931, defendants received from the Appraisals concern- a receipt from the county collector showing that $400 had been paid by them on account of the 1929 taxes on defendants’ property. Defendants’ $400 check appears to have been indorsed by the Appraisals concern and paid through the Chicago Clearing House November 24, 1931, and we think it appears without doubt (although some argument is indulged in by counsel for defendants to the contrary) that plaintiffs’ check for $400 was turned over to the county collector in part payment of the taxes on defendants’ property. There is no contention that defendants knew anything of this fact until this suit was brought. No part of the taxes for 1929 on plaintiffs’ property was paid.

Plaintiffs’ position seems to be that defendants were benefited to the extent of $400 by the application of plaintiffs’ money to the payment of the tax on defendants’ property, and that the law will raise an implied promise that defendants will reimburse plaintiffs to that extent. In support of this plaintiffs say that when the Appraisals concern turned over plaintiffs’ check for $400 to the county collector to be applied in part payment of defendants’ taxes, the Appraisals company was acting as defendants’ agent. On this point counsel for plaintiffs in their brief say: “The National Tax Appraisals, while in the discharge of their duties as agent for defendants, misappropriated the check of plaintiffs and applied it in payment on account of the taxes on defendants’ property. Defendants being responsible for the acts of their agent, cannot retain any benefit that they derived from the unauthorized acts of their agent, but are liable to the plaintiffs for the amount of which they have received the benefit.”

The undisputed evidence is that the Appraisals concern was employed separately by plaintiffs and defendants to obtain reduction of taxes on their respective properties. Obviously the Appraisals concern was the agent of both parties. Just when it ceased to be plaintiffs’ agent and became solely the agent of defendants, counsel in no way point out; nor is there any suggestion on this point, and we think none can be made because it is obvious that the Appraisals concern was the agent of both plaintiffs and defendants and violated its duty to both. When it used plaintiffs’ $400 check to pay part of defendants’ taxes it was violating its duty toward plaintiffs and, by the same act, was violating defendants’ instruction, which was to pay defendants’ taxes with its $400 check. If the defendants were bound by the acts of their agent, the Appraisals concern, as plaintiffs contend, plaintiffs were equally bound because the Appraisals concern was their agent also.

In this court both parties seem to assume that the Appraisals concern, or its officials, have absconded with defendants’ $400, or at least that any claim made against it by plaintiffs or defendants would be of no value, so that either plaintiffs or defendants are out of pocket $400. In this connection plaintiffs seek to invoke the doctrine that where one of two innocent persons must suffer loss because of fraud or wrongdoing by another, the loss should be borne by the one who put it in the power of the wrongdoer to commit the wrong. ' And they say since plaintiffs’ check was made payable to the order of the county collector, while defendants’ check was made payable to the Appraisals concern, the defendants should be held liable. The difficulty with this contention is that while plaintiffs ’ check was made payable to the county collector there was no notation upon it that the $400 should be applied on account of taxes on any particular piece of property. Furthermore, in addition to this negligence or oversight on plaintiffs’ part, there is the further fact that plaintiffs’ check was given to the Appraisals concern September 21, 1931, while defendants’ check was not given until two months thereafter, November 21, 1931, and defendants promptly received their receipted tax bill showing payment of $400 two days afterwards. We are unable to say that defendants’ failure to make their check payable to the county collector enabled the Appraisals concern to perpetrate the wrong or fraud any more than plaintiffs’ conduct in failing to specify the property on which the $400 was to be applied, and in failing for two months to ascertain whether the $400 had been paid to the county collector.

One cannot voluntarily make himself a creditor of another. City of Chicago v. Chicago & N. W. Ry. Co., 186 Ill. 300. If plaintiffs’ 'money was used to pay part of defendants’ taxes, which unquestionably was without defendants’ knowledge or consent, plaintiffs cannot recover the amount thus paid.

The judgment of the municipal court of Chicago is reversed.

Judgment reversed.

McSurely, J., concurs.

Matchett, P. J.,

dissents.

Dissenting Opinion.

I cannot agree with the conclusion reached in this case by a majority of the court, or with the reasoning upon which it is based.

The facts are not complicated. The National Tax Appraisals, Inc., was engaged in the business of making tax adjustments. Plaintiffs employed the/ Appraisals company to adjust and pay their taxes for the year 1929, and to that end bought a cashier’s check made to the order of the county collector and forwarded the same to the Appraisals company. Defendants likewise employed the Appraisals company to adjust their taxes for the same year and forwarded a check drawn to the order of the Appraisals company.

So far as the evidence discloses these contracts were separate and distinct. Plaintiffs did not know of defendants’ contract with the Appraisals company, and defendants did not know of plaintiffs’ contract in that respect.

As a result of these contracts, the Appraisals company became the special agent of plaintiffs to adjust and pay their taxes. It also became the special agent of defendants to adjust and pay their taxes. There was no general agency. The Appraisals company was not the agent of plaintiffs while it was paying defendants’ taxes, nor was it the agent of defendants while adjusting and paying plaintiffs’ taxes. The evidence shows without contradiction that the Appraisals company took the cashier’s draft sent by plaintiffs and applied it to the payment of defendants’ taxes.

Under circumstances such as these I think it should be held that the special agent of defendants having with knowledge taken a check which was the property of plaintiffs and applied the same in liquidation of an obligation of defendants, defendants were thereby enriched at the expense of plaintiffs and obtained that which in equity and good conscience they have no right to retain. I think the judgment should have been for plaintiffs upon that theory. Leipold v. Epler, 198 Ill. App. 618; Peterson v. Smith, 211 Ill. App. 431; Chase & Son v. Willman Mercantile Co., 63 Mo. App. 482; Hathaway v. Town of Cincinnatus, 62 N. Y. 434.

I am also of the opinion that defendants are liable upon another theory, namely, that the Appraisals company while acting as the special agent of defendants, in the course of its employment converted the cashier’s check, the property of plaintiffs, to the use of its principals, defendants. For this tortious act defendants, as the principals of their special agent, are liable although they did not authorize the tortious act or justify or participate in it; and I think they might be so liable even if they had expressly disapproved and condemned the tortious act. Keedy v. Howe, 72 Ill. 133; Noble v. Cunningham, 74 Ill. 51; Pfeffer v. Farmers State Bank of Schaumburg, 263 Ill. App. 360.

Moreover, I cannot agree to the general proposition expressed in the opinion, that plaintiffs were negligent because they failed to put a notation on the cashier’s . check giving a particular description of the particular piece of property on which taxes were to be paid. No authority is cited for the proposition that any such duty rested upon plaintiffs under the circumstances; and I think none can be found.

The vice in the opinion, as I see it, is the failure to recognize the fact that the Appraisals company acted as the special agent of each of the parties for a particular purpose.


author: Mr. Justice O’Connor

text:
    Erickson Bros. & Lucka, Inc., Appellee, v. Great Lakes Construction Company, Appellant.
    Gen. No. 36,667.
    Opinion filed November 6, 1933.
    Rehearing denied November 20, 1933.
    Sims, Stransky, Brewer & Poust, for appellant; Walter Brewer and Otto W. Berg, of counsel.
    Nelson & Quindry, for appellee; S. E. Quindry, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action of assumpsit against the defendant to recover an amount claimed to be due for services performed for defendant in the construction of the 124th Field Artillery Armory at 53rd street and Cottage Grove avenue, Chicago. The case was tried before the court without a jury, and there was a finding and judgment' in plaintiff’s favor for $5,172.70. Defendant appeals.

The declaration was in four’ counts. The first claimed there was $1,260 due for tuck pointing done by plaintiff in connection with the armory; the second averred there was $4,800 due for additional work by plaintiff in moving stone which was not delivered near plaintiff’s derricks. In the third count plaintiff claimed there was $3,000 due it for laying 3,000 feet of stone not covered by the contract; the fourth was the consolidated common counts.

In this court plaintiff abandons counts one and three, leaving the question as to whether plaintiff is entitled to the $4,800 claimed under count two and the amount claimed under the consolidated common counts.

The record discloses that the defendant construction company had a contract with the State of Illinois to construct the 124th Field Artillery Armory in Chicago, and on March 4, 1929, entered into a written contract with plaintiff whereby plaintiff was to install the cut stone in the armory. The contract provided that plaintiff was to be paid $15,200 for the work, which was to be done under the supervision of the State Architect, 'with the usual provisions contained in such contracts. The contract also .contained the following provisions: “Parties of the second part agrees to supply ample room for stone. Stone to be delivered within reach of boom derricks in the proper section and side of building for which it is cut.”

While there is some slight conflict between the parties as to the facts in the case, yet we are of the opinion that there was sufficient evidence to warrant the trial judge in finding that about May 1, 1929, shortly after plaintiff began to set the stone, it complained to defendant that the stone which was being delivered by the Indiana Limestone Company, a subcontractor of defendant, was placed too far away from the boom derricks, that this entailed additional work and expense on plaintiff’s part in moving the stone so that it could be reached by the derricks, and that plaintiff would expect to be paid for this work in addition to the price mentioned in the contract; that to do this extra work plaintiff was required to, and did, employ a number of men, keeping a detailed daily account of the work performed by these men and the wages paid to them, which aggregated $4,742.35; that all the work performed by these men, for which plaintiff paid them, was occasioned by the fact that the stone was not delivered near enough to the boom derricks; that plaintiff performed all the work required of it by the terms of the contract and was paid the consideration named in the contract except $265.33, which defendant retained, claiming it had been put to an expense of some $300 in paying demurrage charges, for which plaintiff was liable. On the trial of the case, however, defendant withdrew its claim for demurrage and admitted it still owed plaintiff the $265.33. There are some other small items aggregating $138.60 which plaintiff claims and about which there seems to be little or no controversy. Counsel for plaintiff say that the trial judge allowed interest on the amounts he found due and entered judgment for principal and interest.

Little is said in the briefs filed in this court by counsel for either party as to the merits of the controversy, but most of what is said is devoted to technical questions of pleading, and puzzling refinements are indulged in as to whether count two of the declaration is based upon the breach of the written contract between the parties. We hope that such argument will become obsolete after January 1st next, when the new Practice Act goes into effect. See sec. 31 et seq., ch. 110, Cahill’s 1933 Statutes. But we must decide the case on the law as it now stands.

The argument of counsel for defendant, as we understand it, is that the second count of the declaration claims damages for a breach of the contract by defendant, and “that plaintiff cannot recover on the theory of an implied contract as set forth in the second count.” On the other hand, counsel for plaintiff say that while the second count includes the written contract, “it is not a suit to recover on the contract, nor a suit to recover for a breach of the contract. It is a suit to recover for additional expense and work performed by plaintiff, for defendant’s benefit, which was caused by the failure of defendant to observe certain provisions of the contract, whereby there arose the implied promise on the part of” defendant to pay plaintiff “for this additional expense and work.”

We think the contention of counsel for defendant that the suit is to recover damages for the breach of the contract must be siistained. It is averred in the second count that the contract provided that the stone was to be delivered “within reach of boom derricks in the proper section and side of building for which it is cut”; that defendant failed and neglected to so deliver the stone, but on the contrary it was delivered at a remote place from 50 to 250 feet from the reach of the boom derricks, so that plaintiff was required to do additional work in moving the stone to where it could be reached by the boom derricks, “and by reason of the aforesaid breach of said contract by the defendant” plaintiff was required to lay out and expend for the use and benefit of the defendant $4,800 in setting the stone.

It has long been the established law of this State that an action of assumpsit will lie where a party claims damages for the breach of a simple contract; that the law always implies a promise to do that which a party is liable to perform, and that such promise may be implied as well as expressed. Puterbaugh Common Law Pleading and Practice, 10th ed., sec. 134, p. 146; Eldred v. Colvin, 206 Ill. App. 2. In that case we said (p. 10): “It is conceded, as of course it must be, that an action of assumpsit will lie to recover damages for the breach of a contract. And this form of action may be maintained whether the contract is express or implied. 1 Chitty’s Pleading (7th London Ed.) *99. The right to maintain such an action has been upheld in the cases of O’Reer v. Strong, 13 Ill. 688; Cushman v. Hayes, 46 Ill. 145; Leonard v. Dunton, 51 Ill. 482; Reebie v. Brackett, 109 Ill. App. 631.” We think the count is sufficient to sustain plaintiff’s claim for the amount of money it was required to pay to move the stone near the boom derricks.

Defendant further contends that the judgment must be reversed because plaintiff, before it could recover any amount, “must first of all show that it has complied with each and every condition of the written contract, ’ ’ and that the evidence fails to show that plaintiff complied with the specifications referred to in the contract because the specifications were not in evidence. And that plaintiff failed to prove it had complied with other requirements of the contract, which proof was necessary to entitle it to recover. Such a defense might be sound if interposed in a proper case; but in the case before us the evidence shows that plaintiff performed the work in setting the stone required of it by the contract, and that defendant paid for this work except the small item of $265.33 which, on the hearing, defendant admitted was due. In this state of the record it is obvious that plaintiff was not required to go into detail to prove what the specifications were and that it had complied with them. It would be a strange rule that would require the plaintiff to take up the time of the court to prove that it had complied with all the provisions of the contract when the evidence shows the work had been done and paid for except a small item admitted to be due. There is no merit in this contention.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


text:
    Anton Halmel for the Use of Bohumil Soukup, Appellant, v. Motor Vehicle Casualty Company, Appellee.
    Gen. No. 36,708.
    Opinion filed November 6, 1933.
    Rehearing denied November 20, 1933.
    Emmet F. Byrne, for appellant; William L. Kelley, of counsel.

      Eckert & Peterson, for appellee; Abe R. Peterson, C. Floyd White and Owen Rall, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Bohumil Soukup brought an action against Anton Halmel and James Halmel to recover damages for personal injuries claimed to have been sustained by being-struck and severely injured by an automobile belonging to defendant James Halmel, and driven by Anton Halmel, a 16-year-old son of James.- There was a directed verdict in favor of defendant, James Halmel, and a verdict and judgment against Anton Halmel for $5,000. Afterward the Motor Vehicle Casualty Company, which had issued a policy of insurance to James Halmel on the automobile, was served as garnishee. Interrogatories were filed in which, among other things, the garnishee was asked whether it had issued a policy of insurance to James Halmel. The garnishee answered, admitting the issuance of the policy and setting up pertinent provisions thereof. One of the answers was that Anton Halmel was .using -and operating the automobile, mentioned in the policy, at the time plaintiff in the personal injury suit was injured, without the permission or consent of his father, the owner of the automobile and the assured named in the policy. A further contention of the garnishee was that it had not been given the notice required by the insurance policy and liability was denied on these two grounds.

There was a hearing- on the garnishment phase of the case before the court without a jury, a judgment entered discharging the garnishee, and this appeal followed.

The court specifically found that sufficient notice, under the policy, had been given to the garnishee, of the accident in question, but refused to find that Anton Halmel had permission from his father to use the automobile at the time of the accident.

For convenience the garnishor will be referred to as plaintiff.

In this court plaintiff contends that the evidence discloses that Anton Halmel had the permission of his father, the assured, to operate the automobile at the time in question, and in his reply brief plaintiff takes the further position that since Anton Halmel, the son, was more than 16 years of age at the time he was driving the automobile which struck and injured Soukup, he had the right to drive it without his father’s permission, and was covered by the policy.

At the request of the court the garnishee has filed an additional brief and argument, answering plain-, tiff’s second contention, in which the position is taken that since Anton Halmel, the son, was not an adult he could not lawfully operate the automobile without the consent of his father, the assured.

Before passing on these contentions we think we ought to say the contention of the garnishee that the court erred in holding that sufficient notice had been given the garnishee of the accident, is not before us because no cross errors have been assigned.

1. Did Anton Halmel, the son, have permission to use the automobile at the time in question? This obviously was a question of fact for the trial court, and unless we are warranted in saying that the finding is against the manifest weight of the evidence we cannot, under the law, disturb this finding. Of course, permission may be implied from the conduct of the parties which will be as binding on the garnishee as if express permission had been given by the father to the son to use the car.

James Halmel, the assured, testified that he was in the business of selling and delivering butter and eggs ; that his son Anton, who was not quite 17 years of age, assisted him in his business as a helper on one of his trucks; that he used two trucks and two automobiles and kept them in a garage at the place where he lived; that Anton had been driving the Ford coupe about six months prior to the accident; that on the evening of the accident the keys were in the Ford car which was back of their house; that he had another boy hired who would drive the Ford in making deliveries and sometimes when that boy was busy he would tell his son Anton to take the Ford and make a delivery, which was done; that,the Ford was kept for pleasure, but occasionally used in business in case of a special order to deliver eggs or butter, and it would be used by the son in making the delivery. The son lived at home with his parents and did not receive a salary. He further testified that Anton could not use the automobile without witness’ permission.

The evidence further shows thafi the attorneys for the garnishee insurance company defended James Halmel, the assured, and his son Anton in the personal injury case, and were paid by the insurance company; and that Anton, the son, was driving the Ford automobile at the time of the accident for a purpose of his own in no way connected with the father’s business.

Upon a careful consideration of all the evidence in the record, we are unable to say that the finding of the trial judge to the effect that Anton, the son, was operating the automobile at the time in question without his father’s consent, was against the manifest weight of the evidence.

2. Did the insurance policy cover the son, Anton, although he was operating the automobile without the consent of his father or of any adult member of the father’s household?

The policy provides that in the same manner and under the same conditions and to the same extent as the insurance is available to the assured, James Halmel, the policy shall inure “to the benefit of any person or persons while riding in or lawfully operating any of the automobiles described . . . and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured, or, if the named assured is an individual, with the permission of an adult member of the assured’s household other than a chauffeur or a domestic servant.” We think this provision means that any adult member of the assured’s household, other than a chauffeur or a domestic servant, may operate the automobile without obtaining the consent of the assured, because the provision quoted states that such adult member may give to another person permission to use or operate the automobile. While the policy does not contain any express provision that an adult member of the household may use or operate the automobile and be covered by the provisions of the policy, yet this is implied because such adult member may legally authorize the use or operation of the automobile by third parties. It is assumed by counsel for both parties that a minor member of the assured’s household (over 15 years of age) might with the permission of the assured use or operate the automobile and be protected by the insurance. But since there is no provision in the policy that a minor member of the assured’s household might use or operate the automobile without the consent of the assured, the assured’s minor son Anton, who was using the automobile without his father’s consent, is not protected and therefore the garnishee was properly discharged.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


text:
    John Murphy, Complainant. Cecil Erickson and Benjamin G. Kilpatrick, Defendants in Error, v. Country Club Building Corporation et al., Plaintiffs in Error.
    Gen. No. 36,734.
    Opinion filed November 8, 1933.
    Marshall A. Pipin, for plaintiffs in error.
    Harry A. Biossat, for defendant in error John Murphy.
   Mr. Justice McSurely

delivered the opinion of the court.

Axel Levander, and others, assert in this court that they are the owners of certain bonds secured by a trust deed, who were made parties, as unknown owners, in a certain proceeding brought by John Murphy, one of the bondholders, against the mortgagor, Country Club Building Corporation, wherein the court was asked to appoint a successor trustee, alleging that the Stony Island State Savings Bank, named as trustee in the deed of trust, was disqualified. The chancellor appointed Benjamin G. Kilpatrick successor trustee, and by subsequent decrees appointed Cecil Erickson successor trustee.

Axel Levander sued out a writ of error from this court as the owner of one of the bonds, and made a large number of other persons, holders of similar bonds, coplaintiffs in error who have joined with Levander in this writ of error. They seek the reversal of the decrees appointing a successor trustee.

The bill of complaint alleges that it is brought by complainant on behalf of himself, the owner of a bond for $1,000, and on behalf of other owners and holders (unknown) of the issue of bonds executed by the Country Club Building Corporation secured by trust deed to the Stony Island State Savings Bank, as trustee, conveying certain real estate in Cook county, Illinois; that the original bonded indebtedness was $1,000,000; that Irwin T. Gilruth has been appointed receiver of the Stony Island State Savings Bank and is acting as such receiver, and that the Stony Island State Savings Bank is therefore disqualified from acting as such trustee; that the trust deed does not appoint a successor trustee and specifies no method for such appointment, and that unless a successor trustee is appointed no -action can be taken by the bondholders to foreclose the trust deed and that all of the bonds are due; complainant alleges that the Country Club Building Corporation is the legal owner of the premises conveyed by the trust deed, and makes the holders and owners of the other bonds parties as “unknown owners.”

After a hearing on April 15, 1932, the court appointed Benjamin G. Kilpatrick successor trustee, and on May 24, 1932, and again on June 18, 1932, entered orders appointing Cecil Erickson successor trustee, superseding Kilpatrick; none of these decrees provided that the Stony Island State Savings Bank should be removed as trustee; neither the bank nor the receiver of the bank was made a party to this proceeding.

The plaintiffs in error say that these decrees appointing a successor trustee are void under .the ruling of this court in Belofsky v. Johnson, 266 Ill. App. 351. In that case we had under consideration a similar proceeding. A receiver had been appointed for the trustee named in the trust deed and the court was asked to appoint a successor trustee, and pending this appointment that a receiver of the premises be appointed. We held there was no vacancy in the trusteeship; that section 11 of the Act (ch. 16a, 11, Cahill’s Illinois Revised Statutes) provides that the receiver of a bank may sue and defend in his own name with respect to the affairs of the bank, and “as soon as can reasonably be done he shall resign on behalf of said bank all trusteeships . . . making in each case a proper accounting on behalf of said bank. ’ ’ In that case we reversed the order appointing a receiver on the grounds that there was no vacancy in the trusteeship and that the receiver of the bank, who was in effect ousted from his duty of resigning as trus.tee, was not made a party. Those two factors are present in the instant case. There was no vacancy in the trusteeship which required the court to appoint a successor trustee, and neither the Stony Island State Savings Bank nor its receiver was made a party to this proceeding. In Mason v. Bloomington Library Ass’n, 237 Ill. 442, it was held that the court has no power to appoint a successor trustee until there is proof that a vacancy existed.

Counsel for complainant seems to concede that these decrees are void and makes no argument in their support. I$e challenges the method by which these plaintiffs in error sue out this writ of error.

It has been held in many cases that an interested party who has not been made a party in the trial court, upon showing that he has an interest in the litigation, may sue out a writ of error. Anderson v. Steger, 173 Ill. 112; People v. O’Connell, 252 Ill. 304; People v. Evans, 262 Ill. 235; People v. Harrigan, 294 Ill. 171. The proper procedure is prescribed in the following cases: In Unknown Heirs of Bowles v. Rouse, 3 Gilm. (Ill.) 408, it was held that it was not proper to prosecute a writ of error in the names of “unknown heirs,” but that such writ must be in the name of the person prosecuting the writ. Also to the same effect is Kircher v. Keating & Sons Co., 145 Ill. App. 1. In Napper v. Short, 17 Ill. 119, the court said, “where the record does not disclose who the real plaintiffs in error are, the party or attorney prosecuting the writ should file a praecipe with the clerk of this court, describing, by a full statement of the names of each of the parties to the judgment sought to be reversed”; that the assignment of errors is in effect the complaint or declaration of the plaintiff in error. In Winne v. People, 177 Ill. 268, it was held that the interest of the plaintiff in error must be alleged in the assignments of error and that without the filing of a special plea denying the facts so alleged, they will stand admitted. The necessity of filing such -a plea was also stated in Gibler v. City of Mattoon, 167 Ill. 18. Examination of the praecipe in the instant case and the assignments of error show that plaintiff in error Levander correctly followed the practice thus prescribed. The other holders of the bonds have joined with him as coplaintiffs in error and have adopted the assignments of error.

Cases cited by counsel for Murphy are not contrary. In Wuerzburger v. Wuerzburger, 221 Ill. 277, the parties suing out the writ of error sought to show their interests only by filing an affidavit, which was not a part of the práecipe, and the' assignment of errors failed to show the interest of plaintiffs in error. In Hauger v. Gage, 168 Ill. 365, the court merely held that the parties suing out the writ were not the defendants in the original proceedings and that as the judgment below did not bind them there was no point in their bringing the matter to the Supreme Court. In the , other cases cited the question of procedure where a party is made defendant as an unknown owner was not involved.

Counsel argues that the plaintiffs in error should have proceeded under section 19 of the Chancery Act, Cahill’s St. ch. 22, ¶ 19, which provides that when any final decree shall be entered against any defendant served by publication, he may come in within one year after the decree and petition the court to set aside the decree. Plaintiffs in error were not limited to the proceedings under that section. They had the right to proceed either under section 19 or to sue out the writ of error in the manner they have done. In Wellington v. Heermans, 110 Ill. 564, it was held that section 19 was intended to give an additional remedy and not to take away or limit the- right of a party to proceed by a writ of error. To the same effect are Harper v. Mangel, 98 Ill. App. 526, and Chapman v. Northern Trust Co., 219 Ill. App. 492, affirmed in 296 Ill. 353. Nothing to the contrary is decided in the cases presented by the complainant.

Counsel for the complainant in his brief and oral argument made certain charges of collusion between the plaintiffs in error and the Country Club Building-Corporation. This is not before us. The plaintiffs in error are said to represent more than 97 per cent of the total bonds outstanding. They are vitally interested in the proceedings in the lower court, in which they were never made parties by name nor represented by counsel. Their right to appear in this court and object to the proceedings in the lower court is too obvious to need discussion.

The decrees appointing a successor trustee were void. We therefore hold that the decree of April 15 appointing Benjamin C. Kilpatrick' successor trustee, and the decrees of May 24 and June 18, 1932, appointing Cecil Erickson, each and all of them are reversed and the cause is remanded.

Reversed and remanded.

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


author: Mr. Presiding Justice Sullivan

text:
    Anna E. Sweesy, Administratrix of the Estate of Harry M. Hess, etc., Plaintiff and Cross Defendant, v. Alfred C. Hoy et al., Defendants and Cross Defendants. Mary Olive Hess, Defendant and Cross Complainant. Anna E. Sweesy, Administratrix of the Estate of Harry M. Hess, Deceased, and Guardian of the Estate of Harry M. Hess, Jr., Plaintiff in Error, v. Alfred C. Hoy et al., Defendants in Error.
    Gen. No. 36,140.

      Opinion filed November 21, 1933.
    Rehearing denied December 4, 1933.
    Chester D. Kern and Alanson C. Noble, for plaintiff in error.
    Carnahan & Slusser, for defendant in error Mary Olive Hess.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

By this writ of error,' Anna E. Sweesy (hereinafter referred to as complainant), administratrix of the estate of Harry M. Hess, deceased, and guardian of the estate of Harry M. Hess, Jr., seeks to reverse a decree of the superior court dismissing complainant’s original bill for want of equity and granting Mary Olive Hess, one of the defendants and cross complainant (hereinafter referred to as cross complainant), relief as prayed in her cross-bill. Alfred C. Hoy, Carl D. Baker, John L. Hess, Union Bank of Chicago, and the Chicago Title & Trust Company, were also made defendants by the original bill of complaint.

The bill alleged that in January, 1923, Martin J. Ahern conveyed certain lands described to the Chicago Title & Trust Company, trustee, under a trust agreement that the trustee would hold for the ultimate use and benefit of Carl D. Baker a 5/10 interest; Alfred C. Hoy a 3/10 interest; John L. Hess a 1/10 interest, and Harry M. Hess a 1/10 interest; that the deed in trust recited that it was understood between the parties that the interest of each and every beneficiary, and of persons claiming under them, should consist solely of a power of direction to deal with the title to the property and the right to receive the proceeds from rentals and sales, and that such right in the avails of the property should be deemed personal property, and be assignable as such, and in case of the death of a beneficiary his interest should pass to his executor or administrator, and not to his heirs; that the beneficiary should have no right, title or interest in any portion of the real estate, as such, but only an interest in the proceeds, it being the intention to vest the full legal and equitable title in the trustee; that Harry M. Hess died October 1, 1923, and left Harry M. Hess, Jr., surviving as his only child; that October 3, 1923, Carl D. Baker, Alfred C. Hoy and John L. Hess, the surviving beneficiaries, requested the Chicago Title & Trust Company, in writing, to convey the title to one George T. Preschern, which the trustee did, and on the same day Preschern conveyed the property to the Union Bank of Chicago under a trust agreement similar to the one under which the Chicago Title & Trust Company held the property, except that Harry M. Hess was not mentioned as a beneficial owner, but Mary Olive Hess was declared to be the owner of an undivided 1/10 interest; that the conveyances from the Chicago Title & Trust Company to Preschern, and from Preschern to the Union Bank of Chicago, were fraudulent as to the heirs and creditors of Harry M. Hess and made for the purpose of diverting the 1/10 beneficial interest from the estate of Harry M. Hess, deceased; and prayed for a decree declaring said 1/10 interest to be the property of the heirs at law of Harry M. Hess, for an accounting, injunctional and general equitable relief.

The answers of Alfred C. Hoy, Carl D. Baker, John L. Hess, the Union Bank of Chicago, and the Chicago Title & Trust Company, admitted the several conveyances as charged, but denied that Harry M. Hess had any interest in the real estate and asserted that the conveyances were made for no other purpose than to convey the legal title to the Union Bánk of Chicago to be held in trust for the benefit of Carl D. Baker, Alfred C. Hoy, John L. Hess and Mary Olive Hess, the equitable owners, and that Mary Olive Hess claims the entire beneficial interest in the undivided 1/10 of the property in her own right as the purchaser of same out of her separate estate.

The answer of Mary Olive Hess admits the conveyance in trust to the Chicago Title &i Trust Company by Ahern, and the execution of the declaration of trust in which Harry M. Hess was named as beneficiary; the transfer to Preschern after the death of Harry M. Hess, and by him to the Union Bank of Chicago in trust, and the execution by that hank of its declaration of trust in which Mary Olive Hess was named a beneficiary in place of Harry M. Hess, after Ms demise. Her answer denied that Harry M. Hess had any interest in the property.

The amended cross-bill of Mary Olive Hess alleged that on or about January 11, 1923, she entered into a verbal agreement with the cross defendants Carl D. Baker, John L. Hess and Alfred C. Hoy, that they would together purchase the real estate described in the bill and would severally advance the purchase price as follows: Carl D. Baker 5/10 thereof; Alfred C. Hoy 3/10; John L. Hess 1/10 and Mary Olive Hess 1/10; that in pursuance of said verbal agreement cross complainant placed in the hands of Baker, John L. Hess and Hoy, out of her own personal, separate and undivided funds $5,000, as a part of the purchase price of her undivided 1/10 interest in the real estate, Baker, John L. Hess and Hoy then and there agreeing to pay the remaimng 9/10 portion of the purchase price in accordance with the proportions above set forth; that Baker, John L. Hess and Hoy entered into negotiations with Oris P. Van Sweringen, Otto Miller and Ralph Van Vechten, the owners of the property who held title in the name of the Calumet Trust Company, for the purchase of the real estate in accordance with said verbal agreement; that Carl D. Baker and John L. Hess caused an agreement in writing dated January 12, 1923, to be entered into between the vendor and themselves as the ostensible purchasers; that the agreement was for the use and benefit pro rata' of the cross complainant and Baker, John L. H§ss and Hoy, in proportion to that part of the purchase price contributed and to be contributed by each respectively; that at the time of the execution of this agreement Baker and John L. Hess paid the vendor $15,000 earnest money, which was contributed in proportion as follows: $7,500 or 5/10 part thereof by Carl D. Baker; $4,500 or 3/10 part thereof by Alfred C. Hoy; $1,500 or 1/10 part thereof by John L. Hess; and the remaining $1,500 or 1/10 part thereof by cross complainant; and that thereby all of the said real estate and the proceeds arising or to arise therefrom became and were, and ever since have been, impressed with a resulting trust for the use and benefit of cross complainant, Baker, John L. Hess and Hoy, in accordance with their respective interests therein.

It further alleged that on or about March 11, 1923, Baker, John L. Hess and Hoy paid the vendor, on account of the purchase price, the further sum of $35,000 as follows: $17,500 or 5/10 by Baker; $10,500 or 3/10 by Hoy; $3,500 or 1/10 by John L. Hess, and the remaining $3,500 or 1/10 by cross complainant; that April 19, 1923, by arrangement between Baker, John L. Hess and Hoy, and the vendor, the legal title of the real estate was caused to be conveyed to the Chicago Title & Trust Company, by deed dated January 12, 1923, and recorded April 20, 1923; that the Chicago Title & Trust Company executed a certain deed of trust dated January 12, 1923, to secure the payment of the balance of the purchase price of $112,288, and concurrently executed a trust agreement, purporting to declare a trust in the proceeds of said real estate, and designated and named Harry M. Hess a beneficiary to the extent of an undivided 1/10 interest, instead of inserting therein the name of Mary Olive Hess as a beneficiary; that the cross complainant relied upon Baker, John L. Hess and Hoy in the procedure to be adopted in taking title and procuring satisfactory evidence of her interest; that the conveyance to the Chicago Title & Trust Company, and the making of the supposed trust agreement, were effected and carried out without the knowledge or consent of cross complainant as to any of the terms thereof, and that she for the first time discovered and learned the details regarding this transaction and the terms of this supposed agreement long after the execution of same.

It also alleged that, upon the conveyance to the Chicago Title & Trust Company, cross complainant, Baker, John L. Hess and Hoy became the equitable owners of all of said real estate and the proceeds, that the action of the Chicago Title & Trust Company in designating Harry M. Hess a beneficiary was without warrant in law, ,and should be set aside, and her interest in said 1/10 should be established and confirmed.

It further alleged that she was the wife, of Harry M. Hess during all of said transactions; that Harry M. Hess was employed by John L. Hess as a real estate salesman on a salary and commission; that he never contributed any portion of the purchase price of the real estate, and that he never had any interest in it. The. cross-bill detailed arrangements to anticipate the payment of the balance of the purchase price of $112,288, at a discount of 12% per cent, and that the transaction was to be consummated October 1, 1923, by conveyance to Preschern, and by him to the Union Bank of Chicago, and the payment of the required amount to the vendors; that the arrangement to convey to the Union Bank of Chicago had been made with the full knowledge of Harry M. Hess; that the amount to be paid to take up the balance of said purchase price of $112,288, was $99,765.59; and that cross complainant paid over her proportionate share.

The cross-bill prayed that the court find and decree that Anna E. Sweesy, neither individually nor as administratrix, nor as guardian has any right,, interest or claim in- the real estate or any portion thereof nor in the proceeds, or that any right, title or interest ever passed to the heirs or legal representative of Harry M. Hess or became a part of his estate; tiat the trust agreement made by the Chicago Title & Trust Company, January 12,1923, in so far as it purports to vest an undivided 1/10 beneficial interest in the real estate and the proceeds thereof in Harry M. Hess, should be set aside and held for naught, and that all of said real estate and the proceeds therefrom may be impressed with a trust in favor of the cross complainant to the extent of an undivided 1/10 interest and decreed to be her sole and absolute property, and that the Union Bank of Chicago be decreed to be the holder of the naked, legal title of said real estate in trust for cross complainant, Baker, John L. Hess and Hoy, in the-proportions above set forth.

Complainant’s answer denied all the claims and allegations of the cross-bill.

This cause was before this court on a former appeal from a decree likewise dismissing the original bill for want of equity and finding that the property and its proceeds were impressed with a resulting trust in favor of cross complainant to the extent of an undivided 1/10 interest in same. Complainant appealed from the former decree to the Supreme Court, but the cause was transferred to the Appellate Court on the ground that no freehold was involved. (324 Ill. 319.) This court reversed the decree and remanded the case for a new trial because of the erroneous admission of evidence of certain witnesses as to matters occurring prior to the death of Harry M. Hess. (246 Ill. App. 442.)

Complainant contends (1) that the trust established in the Chicago Title & Trust Company, in which Harry M. Hess was named as a beneficiary, was an executed express trust in real estate, completely created in writing, and that his interest could not be diverted after his death by his cobeneficiaries; and (2) that the diversion of the interest of Harry M. Hess after his death by his cobeneficiaries was a fraud upon his estate.

Cross complainant’s theory is that she is entitled to the disputed 1/10 interest in the property in question under a resulting trust which came into existence prior to the execution of the declaration of trust by the Chicago Title & Trust Company, under which complainant claims, and which resulting trust was created because it was her money which paid for the 1/10 interest in the property.

Numerous errors have been assigned by complainant. Ten points have been urged by her in support of her contentions and an abundance of authorities have been cited as ■ upholding same. These propositions have been exhaustively treated in the briefs of both parties to this proceeding, but in its final analysis we feel that the material determining question presented for our consideration is whether it has been shown conclusively by clear, unmistakable, unequivocal evidence that the money, with which the undivided 1/10 interest in the property in controversy was purchased, belonged exclusively to the separate estate of cross complainant.

The cause was referred to a master in chancery to take proofs and report his findings of fact and conclusions of law to the court.

It appeared that the vendor of this property, approximating 412 acres and situated in the extreme southern section of Chicago, by agreement of the parties, April 16, 1923, transferred the title in fee to one Ahern (a dummy holder), who in turn April. 19, 1923, by warranty deed, conveyed the property to the Chicago Title & Trust Company, as trustee, “under the provisions of a trust agreement dated January 12, 1923”; that Ahern’s deed was also dated as of January 12, 1923, although it was recorded April 19, 1923; that the deed from Ahern contained the provision that the interest of the beneficiaries under the trust agreement was only in the earnings, avails and proceeds of the property and was to be considered personal property; that the declaration of trust agreement, dated January 12, 1923, was signed by the Chicago Title & Trust Company, Baker, Hoy, John L. Hess and Harry M. Hess, and declared their respective interests as beneficiaries to be: Baker an undivided 5/10; Hoy an undivided 3/10; John L. Hess an undivided 1/10, and Harry M. Hess an undivided 1/10, and provided that the interest of any beneficiary was solely a power of direction to deal with the title and the right to receive the proceeds; that the Chicago. Title & Trust Company would deal with the title only on the written direction of any three of the beneficiaries ; that such right to the proceeds shall be deemed to be personal property and in case of the death of any beneficiary his interest shall pass to his administrator or executor and not to his heirs at law.

It further appeared that Harry M. Hess died October 1, 1923, and that October 3, 1923, the surviving beneficiaries, under the trust agreement of January 12, 1923, directed the Chicago Title & Trust Company, in writing, to convey the property to one Preschern; that Preschern on the same day conveyed it to the Union Bank of Chicago, as trustee; that also on the same day a declaration of trust agreement was executed by the Union Bank of Chicago naming Hoy, John L. Hess and Baker beneficiaries, and declaring cross complainant to be the beneficiary of the undivided 1/10 interest in the property that was in the name of Harry M. Hess in the original.trust agreement with the Chicago Title & Trust Company; that cross complainant was the second wife of Harry M. Hess, deceased, and Harry M. Hess, Jr., was his son by his first marriage.

Except for the declaration of Harry M. Hess’s interest in the property, under the terms of the original declaration of trust, there is no evidence in the record that he contributed anything toward the purchase of the property or that it was the intention of anyone that he should have a beneficial interest in it.

Undisputed evidence, introduced by Mary Olive Hess, cross complainant, demonstrates that January 12, 1923, Baker and John L. Hess entered into a contract in writing for the purchase by them of the property in question from the Calumet Trust Company for $400 an acre; that they paid $15,000 as earnest money to apply on the purchase when consummated; that the property was to be conveyed to the Chicago Title & Trust Company when $50,000 of the purchase price was paid, notes and trust deed to be given to secure the balance of same; that the additional $35,000 necessary to make up this $50,000 was paid to the Chicago Title & Trust Company, March 21, 1923, by John L. Hess’s check for $7,000, Hoy’s check for $10,500, and a cashier’s check for $17,500 purchased by Baker; that the $50,000 was paid to vendor, April 19, 1923, and deeds from the vendor to Ahem, from him to the Chicago Title & Trust Company, trustee, and the declaration of trust agreement by the Chicago Title & Trust Company, were executed, as well as a special trust deed by the Chicago Title & Trust Company securing its notes for the balance of the purchase price, $112,288; that during August, 1923, the property was subdivided and at least 52 lots were sold prior to October 1, 1923, the date of the death of Harry M. Hess; that all of such sales were made on printed forms in which the Union Bank of Chicago, as trustee, was named as vendor; that a set of books was opened by the beneficial owners of the property, August 15, 1923, and the name of O. M. Hess (Mary Olive Hess) appeared in the first entry in the cash journal as contributing her 1/10 share of the- original bank deposit of $1,000; that the cash journal under date of October 3, 1923, showed that Baker paid $45,000, Hoy $27,000, John L, Hess $9,000, and O. M, Hess (Mary Olive Hess) $9,000, which with $9,765.59 collected from the sale of lots prior to that date aggregated $99,765.59, that was paid to the vendor as the balance of the purchase price of the property; that October 3, 1923, the vendor, as the culmination of negotiations that had theretofore been carried on by the parties, allowed the purchasers a discount of 12% per cent of the balance due and accepted $99,765.59 as full payment, in lieu of $112,288, the unpaid balance of the purchase price; that cross complainant’s payment of her share ($9,000 of that balance) was made by a check of John L. Hess for $6,300, which he said was not his money but was given him by cross complainant, and her own check for $2,700 payable to John L. Hess, and by him indorsed to the vendor, the Calumet Trust Company; that John L. Hess was reimbursed for his payment of the $15,000 earnest money by each of the beneficiaries in proportion to his or her interest in the property, cross complainant’s payment being evidenced by a check drawn on her account in the Stony Island Trust & Savings Bank for $1,500 or 1/10 of the amount by her husband Harry M. Hess; that cross complainant paid her 1/10 share of the $35,000, heretofore referred to, by a check drawn on her account in the same bank by Harry M. Hess for $3,500 and payable to John L. Hess; that Harry M. Hess did not at that time and never had an account in the Stony Island Trust & Savings Bank where cross complainant carried her account; that she carried an account in that bank and authorized Harry M. Hess, as her attorney in fact, to draw checks on her account; and that the checks for $1,500 and $3,500, drawn by Harry M. Hess, were charged to her account in that bank.

Complainant relies on the original declaration of trust executed by the Chicago Title & Trust Company, and signed and sealed by Baker, Hoy, John L, Hess and Harry M. Hess, to establish her claim that Harry M; Hess was completely and expressly, vested with a beneficial interest in an undivided 1/10 of this property, which she maintains could not be destroyed by any act of the surviving beneficiaries of the trust after his death.

The evidence introduced before the master amply supported his finding that no money of Harry M. Hess went into the purchase of this property, and it was conclusively shown that cross complainant’s separate money was used to purchase the undivided 1/10 interest in the property declared to be his under the original .trust agreement.

As the master found in his report, the repudiation of their original trust agreement by his cobeneficiaries two days after the death of Harry M. Hess, and their undertaking to annul and wipe out that agreement, specifying that he was the owner of an undivided 1/10 interest, and replace it with a similar trust agreement declaring that cross complainant was the beneficial owner of the undivided 1/10 interest, rather than Harry M. Hess, her deceased husband, might be considered as throwing a suspicion of fraud upon the transaction, but a careful analysis of the evidence leads inevitably to the conclusion that what appears at first blush to be the conduct of persons having fraudulent designs was in fact conduct designed to carry out the intention of all parties concerned.

A number of reputable, disinterested witnesses, whose testimony stands unimpeached on the record, testified that the deceased had both before and after the execution of the trust agreement naming him as beneficiary, declared that it was cross complainant’s money that purchased the 1/10 beneficial interest in the property; that his name was used in the original trust agreement instead of hers erroneously; that he intended to have the mistake rectified; that he die-claimed any interest in the property and that he was acting solely in behalf of his wife as her agent. The books of account of the beneficial purchasers, records of the Stony Island Trust & Savings Bank, and other evidence in the record, clearly and unmistakably show that it was cross complainant’s money, and her money only, with which this undivided 1/10 interest in the property was purchased.

That it was contemplated transferring the trust to the Union Bank of Chicago, and executing a trust agreement that would speak the truth as to the ownership of the respective beneficial interests in the property prior to the death of Harry M. Hess, was evidenced by the execution, beginning in August, 1923, of contracts of sale of the subdivided property on forms containing the name of the Union Bank of Chicago, trustee, as vendor, and by statements made by Harry M. Hess to certain of the witnesses that he did not want to bother substituting cross complainant for himself as beneficiary of the undivided 1/10 interest under the trust agreement with the Chicago Title & Trust Company, because the trust was about to be transferred to the Union Bank of Chicago, and that when the transfer was made he would see that cross complainant’s name was substituted in the new trust for his own.

Under the circumstances the law impresses a resulting trust on the property purchased in favor of the party whose money was used in the purchase and it is immaterial whether the purchase was made and the money actually paid by the trustee, or the cestui que trust, provided the money was in law the property of the cestui que trust. In following this established rule in Falgowski v. Daniel, 333 Ill. 208, 213, 214, the court said:

“We cannot escape the conclusion from the evidence that the purchase price was paid by appellant and that a trust resulted in his favor. A resulting trust does not spring out of a contract or agreement but results, as a matter of law, from the acts of the parties and arises at the time of the execution of the conveyance. In VanBuskirk v. VanBuskirk, 148 Ill. 9, the court said, where a ‘payment of the purchase money by one and conveyance of the title thereby purchased to another are found to exist, then the law so construed those two facts as to make them constitute a resulting trust, and for this reason such a trust is said to arise by operation of law. ’ A resulting trust may be established by parol evidence. In Katzing v. Wiegand, 286 Ill. 646, the court said it was not material whether the purchase was made by the trustee or the cestui que trust. If the fact was that the cestui que trust paid the purchase price a trust resulted in his favor by operation of law.”

Cross .complainant’s theory that a resulting trust in her favor was impressed on the property, prior to the execution of the declaration of trust agreement by the Chicago Title & Trust-Company, by reason of the fact that it was her money that paid for the undivided 1/10 interest, is distinctly borne out by all the facts and circumstances of the case and sustained by the authorities of every jurisdiction in the' United States.

It is not imperative that one claiming a resulting trust by operation of law shall have actually paid all or part of the purchase price at the time of the conveyance. But it is sufficient if a grantee (beneficiary) advances the purchase price, part for himself and part for another, as such action amounts in effect to loaning such other person the money so advanced for his benefit, and the resulting trust is raised in favor of such other person to the extent of the money so advanced or loaned. (Towle v. Wadsworth, 147 Ill. 80, 96.) Some advances were made in behalf of cross complainant, but that her interest was ultimately paid for out of her own separate funds has been fully and clearly shown. When a person claiming a resulting trust once shows that the money furnished for the purchase price belonged to him, the burden is on the nominal grantee (beneficiary) to show that it was intended that he should have a beneficial interest in the property. In the case of Niland v. Kennedy, 316 Ill. 253, 262, the court said:

“Where it is shown, as it is by this record, that the purchase money has been furnished by one party and the deed has been made to another, the presumption is in favor of the trust resulting to the party furnishing the consideration, and the burden is on the one holding the legal title to show it was intended he should have some beneficial interest in the property. (Lutyens v. Ahlrich, 308 Ill. 11; Crawford v. Hurst, 307 id. 243.)”

As heretofore noticed complainant offered no evidence to show that Harry M. Hess paid any part of the purchase price with his own funds.

A resulting trust arises when the purchase money is paid by one person and the title is taken in the name of another, and this rule applies in favor of one who pays part only of the purchase price. This rule is well stated in Hinshaw v. Russell, 280 Ill. 235, 240:

“Such a trust also ‘results in favor of one who pays only a part of the price. In other words, where two or three persons together advance the price and the title is taken in the name of one of them, a trust will result in favor of the other with respect to an undivided share of the property, proportioned to his share of the price.’ (3 Pomeroy’s Eq. Jur., sec. 1038. See, also, 1 Perry on Trusts, — 6th ed. — sec. 126.) ”

It is a settled doctrine that where property is conveyed to a husband and the purchase price therefor is furnished by the wife there is no presumption of an advancement, gift or loan to the husband, but a re-suiting trust is created in favor of the wife in the absence of positive testimony evidencing an intention to the contrary. In Crawford v. Hurst, 299 Ill. 503, 508, this language was used by the court:

“Where a husband takes title to land bought with his wife’s money there is no presumption of a gift or advancement to him, as there is no legal obligation on the part of the wife to support him. • In such case it is not necessary, in order to establish a resulting trust in favor of the wife, to show an intention by the, parties to create a trust at the time of the transaction. ’ ’

It is urged by complainant that to sustain the theory of cross complainant it would be necessary to attempt to impress a resulting trust on the already expressly declared trust under which Harry M. Hess was named beneficiary of an undivided 1/10 interest in the property. It is conceded that under the. law a resulting-trust cannot be imposed where the identical property is already subjected to an express trust. The resulting trust in favor of cross complainant had been fully created and was in full force and effect at the time of the attempted creation of the express trust for the benefit of Harry M. Hess. We must reach this conclusion, whether we consider that the resulting trust came into being when the original purchase contract was made by Baker and J. L. Hess, as ostensible purchasers, or whether we consider that it sprang into existence with the transfer of the legal title from the vendor, the Calumet Trust Company to Ahern, the “dummy” grantee. In either event the status and rights of the parties had been fixed.

Complainant insists that the decision of the Supreme Court, on the former appeal of this cause, established the interests of the beneficiaries under the trust instrument executed by the Chicago Title & Trust Company as personal property, and that it being such, and not a freehold, a resulting trust could not attach to it.

Cross complainant urges that the trust agreement executed by the Chicago Title & Trust Company was void as having been made, without her knowledge, acquiescence or consent, and her contention that the resulting trust in her favor attached, not to the beneficial interest which it was attempted to declare under the terms of the Chicago Title & Trust Company declaration of trust, but originally to the freehold conveyed by the warranty deed from the Calumet Trust Company to Ahern, is obviously sound.

It is true that the law of this case that no freehold is now involved in this proceeding was settled by the Supreme Court on the former appeal, but it is immaterial to the- rights and equities of cross complain■ant whether a freehold is now involved or not. A resulting trust, having been created in favor of cross complainant, continued to exist in the property to which it attached regardless of the form the property subsequently took. The resulting trust was imposed in favor of cross complainant before the property became personal property and could not thereafter be divested or destroyed without her consent.

Cross complainant’s beneficial undivided 1/10 interest in this property is personal property, but it only became such by reason of the conveyance of the property from the Chicago Title & Trust Company to Preschern, his quitclaim deed to the Union Bank of Chicago, and its declaration of trust naming her as beneficiary of the trust to the extent of an undivided 1/10 interest, and specifying that the interests of the beneficiaries were personal property.

The fact that the beneficial interest of cross complainant must be'considered personal property cannot defeat her right or interest in the property once such interest has been established and the doctrine has long been established that a resulting trust may attach to personal property just as effectively as it may be imposed on real estate. Referring to the rule relating to creation of resulting trusts, the following language is found in sec. 130, Perry on Trusts & Trustees, 7th ed., p. 201:

“The rule embraces personal property as well as real estate; and if a man purchase a bond, annuity, stock, mortgage, or other personal interest, in the name - of a third person, the equitable ownership results to the person from whom the consideration moves.” (See also 39 Cyc. 125; Clapp v. Emery, 98 Ill. 523, and Ellsworth v. Miner T. Ames Co., 125 Ill. 223.)

We are of the opinion under all of the facts and circumstances appearing in this cause, that the conveyance by Ahern to the Chicago Title & Trust Com- • pany under an express declaration of trust naming Harry M. Hess as beneficiary, was in contemplation of, law an attempt to impose an express trust on the resulting trust theretofore created in favor of cross complainant, Mary Olive Hess; that such attempted express trust was void as to her and in derogation and violation of her rights; and that the chancellor was warranted in setting it aside.

Other points have been urged, but in the view we take of the matter we deem it unnecessary to discuss them.

. For the reasons indicated herein the decree of the superior court is affirmed.

Affirmed.

Gridley and Scanlan, JJ., concur.