text:
    Charles J. Hruby et al., Appellees, v. Bernard Steinman et al. On Appeal of Bernard Steinman, Appellant.
    Gen. No. 40,700.

      Opinion filed December 13, 1939.
    Julius A. Polikoff and Alex Markels, both of Chicago, for appellant.
    Rosenberg, Stein & Rosenberg, of Chicago, for appellees; Milton A. Gordon, of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a decree entered on December 24,1938, by the terms of which John Toman, sheriff of Cook county, or his successor in office, was enjoined from selling certain real estate after redemption thereof and enjoining Bernard Steinman, appellant, from asserting any title thereto.

In the complaint for an injunction it is alleged that the plaintiffs are the holders of a certificate of sale made by Robert W. Dunn, master in chancery of the superior court, on a foreclosure sale, at which the premises were sold to them. Defendant Steinman is the judgment creditor who redeemed from that foreclosure sale.

The cause was heard before the trial court on the pleadings, stipulation of facts and argument at which time the decree for the injunction was entered. Stein-man, the judgment creditor, brings this appeal.

It appears that Steinman, the judgment creditor deposited with the sheriff the requisite amount of money for which the property was sold and the cost thereof.

The stipulation between the parties as to the facts is substantially as follows :

(Pars. 1-5) On February 17, 1928, Anthony J. Zelenka and Frank A. Kveton were the owners (each of an undivided one-half interest) of the real estate described in the complaint; that on said date Zelenka and wife and Kveton and wife executed bonds, aggregating $80,000; that to secure payment of said bonds Zelenka and wife and Kveton and wife executed their trust deed, conveying said premises to Cicero Trust and Savings Bank, as trustee; that on June 4, 1931, proceedings for foreclosure of said trust deed were filed in superior court of Cook county in cause entitled “12th St. State Bank v. Zelenka, et al., No. 537804”; that a decree of foreclosure was entered in said cause on June 22,1935, finding due to plaintiffs in said cause, for their own benefit, the sum of $2,110.50 and for the benefit of owners of said bonds the sum of $102,894.65.

6. If the court would admit such evidence, it would appear that plaintiffs are a committee holding bonds aggregating $61,300 and that said bonds are held by plaintiffs for the benefit of 103 persons.

Objection is made by defendant to above facts on the ground that they are immaterial and said facts are not to be considered by the court if they are so found.

7. Pursuant to the foreclosure decree the premises were sold on July 15, 1936, by Robert W. Dunn, master in chancery of superior court, to plaintiffs for the sum of $17,000.

8. The sale was approved by the superior court and the master issued to plaintiffs his certificate of sale dated July 15, 1936. Plaintiffs hold same as trustee for the benefit of depositing bondholders.

Objection is made by defendant Steinman to fact that plaintiffs hold certificate of sale as trustee for the benefit of depositing bondholders, on the ground that said facts are immaterial.

9. If court would admit such evidence, it would appear that plaintiffs borrowed $15,000 and paid therefrom the costs of foreclosure and on May 19,1937, paid general taxes in the sum of $6,382.65. Said taxes were paid by Frank J. Lexa, the attorney who then represented plaintiffs, but the receipted tax bills were not filed with the master.

Objection is made by defendant Steinman to above facts on the ground that they are immaterial and that inasmuch as such tax bills were not deposited with the master as provided by statute he could not, under the law, safely pay to the sheriff the said tax moneys when he made his redemption. Said facts are not to be considered by the court if they are thus found to be immaterial.

10. On September 22, 1937, John Toman, sheriff, filed with the recorder of deeds his certificate of redemption which recited that Steinman, as the holder of purported judgments, one against Zelenka and one against Kveton, deposited with said sheriff the sum of ■ $18,207 for redemption of the premises above described, a copy of said certificate being attached as ‘1 Exhibit A. ’ ’

11. It would appear, if the court will admit such evidence, that on September 24, 1937, Steinman, through his attorney, was apprised by said Frank J. Lexa that plaintiffs had made payment of taxes and had neglected to deposit the tax receipts with the master. Subsequently, on or about September 28, 1937, Stein-man offered and agreed to deposit in escrow the amount of such taxes under an escrow agreement, whereby the escrowee would be directed to pay plaintiffs all of said moneys, if upon a sale of said premises, to be held pursuant to redemption, they were sold to defendant Steinman by the sheriff and thereafter a deed was issued to him by the sheriff. Plaintiffs refused the offer.

Plaintiffs object to above facts on the ground that they are immaterial and that any offer of settlement is not proper evidence. Said facts are not to be considered by the court if they are thus found.

12. The judgment described in the sheriff’s certificate of redemption as having been recovered against Kveton, et al., was recovered by Harry J. Smejkal on April 13, 1933, in the circuit court in the sum of $6,566.67 and costs; that on May 17, 1933, an execution was issued thereon and placed with the sheriff; that at the time of the rendition of said judgment and the issuance of the execution, Kveton was the owner of a half interest in said premises; that no part of said judgment has been paid, nor has it been reversed, vacated or modified; that on September 21, 1937, Smejkal assigned said judgment to Steinman.

Said judgment was purchased by Steinman for $1,500. Objection is made by Steinman to the fact as to the amount paid for said judgment, on the ground that it is immaterial and regardless of the amount paid, he had a right under the statute to redeem. Said fact is not to be considered by the court if it is thus found to be immaterial.

13. The judgment described in the sheriff’s certificate of redemption as having been recovered by Stein-man against Zelenka before the justice of the peace was recovered on August 28, 1937, and said certificate refers to a transcript thereof which is attached as “Exhibit B.”

14. On September 21, 1937, Steinman sued out a pluries execution on said judgment against Kveton and placed it with John Toman, sheriff, for said sheriff to execute; and at the same time placed with said sheriff an execution issued by the clerk of the circuit court on said transcript of judgment against Zelenka for said sheriff to execute. At said time Steinman also delivered to the sheriff a copy of the certificate of sale issued by Dunn, the master in chancery, which described the above premises which Steinman desired to redeem and at said time delivered to the sheriff a letter, copy of which is attached as “Exhibit C” and at said time paid to the sheriff for the use of plaintiffs, who were purchasers of the premises at said sale, their executors, etc., the sum of $18,207, being the amount of the foreclosure sale, with interest at 6 per cent from date of sale; that thereupon the sheriff indorsed on the back of each execution a levy of the premises and on September 22, 1937, recorded the certificate of redemption attached as 1 ‘ Exhibit A. ’ ’ The sheriff thereupon advertised a sale of the premises to be held on October 19, 1937, in accordance with notice of sale attached as “Exhibit D.”

15. The transcript marked “Exhibit B” shows on its face that the purported judgment was based on the following summons:

To any Constable of said County — Greeting

“You ARE HEREBY COMMENDED TO SUMMON ANTHONY J. Zelenka to appear before me at my office.......... in said County, on the 28th day of August, A. D. 1937, at 10 o’clock A. M. to answer the complaint of Bernard Steinman for failure to pay him a certain demand not exceeding Five Hundred Dollars and hereof make due return as the law directs.

“Given under my hand this 23rd day of August, A. D. 1937.

‘ ‘ Harry Levitón Justice of the Peace.”

16. If the Court would admit such evidence it would appear that the original summons which was issued by the justice of the peace and seiwed upon Zelenka is as follows:

“YOU ARE HEREBY COMMANDED TO SUMMON ANTHONY J. Zelenka to appear before me at my office 2nd floor— 6818 Windsor Avenue, Berwyn, Illinois, in said county, on the 28th day of August, A. D. 1937, at 10 o’clock A. M. to answer the complaint of Bernard Steinman for failure to pay him a certain demand not exceeding Five Hundred Dollars and hereof make due return as the law directs.

“Given under my hand this 23rd day of August, A. D. 1937.

“Harry Levitón (Sgd) (seal) Justice of the Peace.”

■ Plaintiffs object to above fact on the ground that it is immaterial; that the execution upon which the redemption was made was based on the transcript attached as “Exhibit B,” and that said transcript is conclusive as to the facts recited therein and said fact is not to be considered by the court if it is found to be immaterial.

17. That plaintiffs advised Dunn, master in chancery, that the redemption is void and on October 16, 1937, demanded a master’s deed to the premises, which the master refused to issue because of the purported Redemption.

(Pars. 18-21.) That plaintiffs have not accepted the money deposited by Steinman and that said money remains on deposit with the sheriff; that Toman, as sheriff, advertised a sale of the premises in accordance with notice of sale attached as “Exhibit D,” but was restrained from making same by temporary injunction entered herein; that Dunn is still a master in chancery of the superior court; that the premises involved herein are not vacant property, but are improved with an apartment building and are in the possession of a receiver appointed in the foreclosure cause.

It is further stipulated that it is the purpose and intent of this stipulation to dispense with any and all proof as to the truth of the foregoing facts and that upon the trial of this cause, no evidence shall be offered by either party in addition to the matters herein contained and that the court shall determine all questions of law and fact and proceed to judgment on the pleadings and upon this stipulation of facts, subject to the provisions of the next succeeding paragraph.

This stipulation is entered into without prejudice to the right of the defendant Bernard Steinman to contend that the circuit court of Cook county is without jurisdiction to direct Bobert W. Dunn, master in chancery of the superior court, to issue his master’s deed to plaintiffs, and that the superior court of Cook county is the proper forum for such relief; and that the circuit court is without jurisdiction to grant any other relief prayed in the complaint.

“Exhibit A” attached to complaint and stipulation of facts is certificate of redemption of Toman, sheriff, and is substantially as follows:

“Whereas, following premises in Cook County, Illinois, were on July 15,1936, exposed for sale by Bobert W. Dunn, Master in Chancery of Superior Court, pursuant to decree of said court entered on June 22, 1935, in the cause of 12th St. State Bank v. Anthony J. Zelenka, et al., No. 537804, at which sale Charles J. Hruby, John Bartunek, Mamie C. Zvolsky and H. W.o Budenbender became purchasers of said premises, to wit: (Premises described in complaint, Abst. 2). The full purchase money was $17,000 and the said Charles J. Hruby, et al., received from the master a certificate of sale stating that said Charles J. Hruby, et al. would be entitled to a deed to said premises on October 16, 1937, unless sooner redeemed; and,

“Whereas, 12 months have, but 15 months have not, elapsed since the date of the master’s sale and said premises have not been redeemed by any defendant to said suit in which said decree was entered, or any person interested in said premises through or under any defendant to said suit; and,

“Whereas, Harry J. Smejkal recovered a judgment in the Circuit Court of Cook County at the March, 1933 term against Frank Kveton and others for the sum of $6,566.67, damages and costs; and said judgment has been assigned to Bernard Steinman; and,

“Whereas, Bernard Steinman recovered a judgment before Harry Levitón, Justice of the Peace, on August 28, 1937, as appears by transcript thereof filed in the Circuit Court on September 20, 1937, against Anthony J. Zelenka, for the sum of $144.64; and,

“Whereas, Bernard Steinman, assignee and judgment creditor, on September 21, 1937, sued out a pluries execution upon his judgment in the case of Harry J. Smejkal vs. Frank Kveton, et al., and on September 20,1937, sued out an execution on transcript of judgment upon his judgment against Zelenka and on September 21, 1937, and executions were placed in my hands as sheriff to execute, and I, as sheriff, endorsed on the back of both of said executions a levy of the premises above described, which Steinman, assignee and judgment creditor, desired to redeem from said Master’s sale; and,

“Whereas, Steinman on September 21, 1937, in accordance with the statute, paid to me, as sheriff, the sum of $18,207, being the amount for which said premises were sold at the master’s sale, with interest at 6 per cent per annum from date of sale, said sum being in full for redemption from said master’s sale:

“Now, therefore, I, John Toman, Sheriff of Cook County, do certify that said premises have this day been redeemed from said master’s sale by Bernard Steinman, in accordance with the provisions of the statute. (Dated September 21, 1937).

John Toman, Sheriff.”

“Exhibit B” attached to complaint and stipulation of facts is a transcript of judgment recovered before Harry Levitón, justice of the peace, in the case of Bernard Steinman v. Anthony J. Zelenka. Said transcript contains what purports to be a copy of the summons issued by the justice; the return of the constable showing service on Zelenka; a copy of the justice’s docket from which it appears that on August 28, 1937, judgment for $144.64 was rendered in favor of Stein-man and against Zelenka; a copy of the execution issued by the justice with the constable’s return thereon and the certificate of the justice certifying that it is a true and complete transcript of the proceedings in said cause; copy of summons contained in said transcript is set forth (Abst. 15).

“Exhibit C” attached to stipulation of facts is letter dated September 21, 1937, from Alex Markels to John Toman, sheriff, and is substantially as follows:

“I hereby hand you an execution issued by the Clerk of the Circuit Court upon the judgment in favor of Harry J. Smejkal and assigned by him to Bernard Steinman, plaintiff, against Frank Kveton, et al., in case No. B-203077, for the sum of $6,566.67 and costs; also execution from the Clerk of the Circuit Court upon the judgment in favor of Bernard Steinman, plaintiff, against Anthony J. Zelenka, defendant, in case No. J. P. Transcript 31743 for the sum of $144.64 and costs of suit, and hereby request that you execute both of said executions.

“I also hand you a certified copy of certificate of sale issued by Robert W. Dunn, Master in Chancery of the Superior Court of Cook County in cause No. 537804, entitled Twelfth Street State Bank vs. Anthony J. Zelenka, et al., which was dated October 24, 1936, in connection with the sale of the premises described as: (Premises described in complaint, Abst. 2).

“Said Bernard Steinman, by reason of the execution first above described, is the judgment creditor of Frank Kveton, defendant in said cause entitled Twelfth Street State Bank vs. Zelenka, et al., a former owner of an undivided one-half interest in said premises, and by reason of the execution secondly above described is the judgment creditor of Anthony J. Zelenka, defendant in said cause entitled Twelfth Street State Bank vs. Zelenka, a former owner of an undivided one-half interest in said premises, and desires to make a redemption as a judgment creditor under each and both of said executions of the whole of said premises, from the sale evidenced by said certificate of sale.

“The undersigned on behalf of Bernard Steinman does hereby tender to you for the use of the purchasers of said premises, their heirs, executors, administrators or assigns, the sum of $18,207.00, being the amount for which the premises to be redeemed were sold, together with interest thereon at the rate of 6% per annum from the date of such sale, also all costs in connection with said redemption are handed you herewith.

“No redemption from said sale was made by any defendant in said cause of Twelfth Street State Bank vs. Anthony J. Zelenka, Superior Court No. 537804, or by his or their heirs, executors, administrators or assigns, or by any person interested in said premises through or under the defendants, within twelve months from the date of said sale.

“Will you kindly endorse upon the back of each of said executions the levy of the premises described to be redeemed and take and perform such acts as are required by Section 20, Chapter 77 of the Illinois Devised Statutes, 1937, and all other applicable sections of said Chapter 77.

‘ ‘ The premises above described are not a homestead and are not registered under the Torrens system,

“(signed) Alex Markels Attorney for Bernard Steinman.”

Sheriff’s notice of sale attached to complaint as “Exhibit C” and to stipulation of facts as “Exhibit D” is substantially as follows:

“By virtue of a redemption from a master’s sale and a certain pluries execution from the Circuit Court of Cook County in favor of Harry J. Smejkal (Bernard Steinman, assignee) and against Frank Kveton, et al., and also by virtue of a certain execution issued from the Circuit Court of Cook County on a transcript of judgment from a J. P. in favor of Bernard Steinman and against Anthony J. Zelenka, I shall, at ten o’clock A. M. on October 19, 1937, at the east entrance of the Cook County Court House in Chicago offer for sale at public vendue the premises hereinafter described, to wit: (premises described in complaint, Abst. 2). Dated September 25, 1937.

(Signed) John Toman, Sheriff.”

The court did not rule as to the validity of the offers ' of evidence which were reserved for decision by its terms, as contained in the stipulation, nor did counsel insist that it do so.

A decree was entered by the court on December 24, 1938, which was in substance as follows: that the temporary injunction issued was made permanent, and that the sheriff, or his successor in office, be and they were perpetually enjoined from selling the property heretofore described, under and pursuant to the certificate of redemption issued by him and filed in the office of the recorder of deeds of Cook county, Illinois on September 27,1937, or under the purported redemption or levy described therein; that said sheriff was further perpetually enjoined from issuing any certificate or deed to the premises based on said levy, purported redemption or sale; that Steinman was permanently enjoined from causing any sale to be held or from asserting any right, title, interest or lien, into or upon the said real estate based on the purported redemption or levy described in said certificate of redemption of the sheriff and was further permanently enjoined from prosecuting or attempting to prosecute any suit or action to obtain possession of said premises, title thereto, or any interest therein based on said levy, purported redemption, or any sale held pursuant thereto.

The injunction further ordered that the sheriff of Cook county, or his successor in office pay over to said Bernard Steinman upon demand and payment of his costs, the moneys received by him from the said Bernard Steinman, as recited in the said certificates of redemption and that plaintiffs have and recover from the defendant Bernard Steinman their costs herein and that execution issue therefor as provided by law.

Plaintiffs ’ contention, as we understand it, is:

First: There being two executions against the owners of the real estate, that the sheriff may not sell as a whole on two executions;

Second: The right of redemption is statutory and must be exercised pursuant to the statute;

Third: A judgment creditor having a judgment against the holder of an undivided one-half interest in real estate is entitled to redeem only the undivided interest of his judgment debtor.

Defendant contends that the redemption is not void for the following reasons:

First: The holder of a certificate of sale is entitled only to the redemption money, and, if one entitled to redeem, makes redemption, the certificate holder has no legal ground for complaint;

Second: Steinman was a judgment creditor entitled to redeem, and, in redeeming, he complied with the statute;

Third: The redemption is not void because Stein-man placed two executions with the sheriff, one against each co-owner;

Fourth: The redemption is not void because Stein-man paid the full redemption money;

Fifth: The redemption is not void because of the form and content of the sheriff’s certificate of redemption ;

Sixth: The redemption is not void because of the form and content of the sheriff’s notice of a sale which was never held; and;

Seventh: The statute on redemptions is given a liberal construction.

Chapter 77, pars. 19 and 20, secs. 19 and 20, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.170, 107.171], read as follows:

“19. Certificate of redemption — to be recorded.] § 19.. In all cases of redemption of land from sale had under any execution, judgment, order or decree, it shall be the duty of the purchaser, sheriff, master in chancery or other officer or person from whom said redemption takes place, to make out an instrument in writing, under his hand and seal, evidencing said redemption, which shall be recorded in the recorder’s office of the proper county, in like manner as other writings effecting the title to real estate are filed and recorded, which recording shall be paid for by the party redeeming. . . .

“20. Redemption by creditor, etc.] §20. If such redemption, is not made, any decree or judgment creditor, his heirs, executors, administrators or assigns may, after the expiration of twelve months and within fifteen months after the sale, and when any sale is had under any order or decree of foreclosure upon a mortgage or trust deed executed by a corporation and containing a waiver of the right of redemption any decree or judgment creditor of such corporation may within three months after the sale, redeem the premises in the following manner: such creditor, so entitled to redeem, his heirs, executors, administrators or assigns may sue out an execution upon his judgment or decree, and place the same in the hands of the sheriff or other proper officer to execute the same, who shall endorse upon the bank thereof a levy of the premises desired to be redeemed; and the person so entitled and desiring to make such redemption shall pay to such officer the amount for which the premises to be redeemed were sold, with interest thereon at the rate of six per centum per annum from the date of the sale, for the use of the purchaser of such premises, his executors, administrators or assigns, whereupon such officer shall make and file in the office of the recorder of the county in which the premises are situated a certificate of such redemption, and shall advertise and offer the premises for sale under said execution as in other cases of sale or execution. ’ ’

A motion was made in this court to dismiss the appeal, which motion was reserved to a final hearing, and after due consideration thereof, it is hereby denied.

We have recited the record at considerable length as it has been abstracted for our consideration. The substance of the controversy is this: A property upon which a mortgage was foreclosed was sold by the master. Thereafter the defendant herein attempted to redeem from the master’s sale by paying the amount for which it was sold by the master, plus 6 per cent interest and costs by virtue of two judgments, — one against each of the individuals, tenants in common, who were the owners of the fee title to the property and against whom the judgment in foreclosure had been entered. One of the judgments against Zelenka, taken before a justice of the peace is conceded to be invalid because of some objection to the jurisdiction of the justice of the peace who rendered the judgment. That being true, then the defendant Steinman would not be a judgment creditor as contemplated by the statute in so far as that particular judgment is concerned. So, the remaining question is whether or not, with the valid judgment for $6,566.67 against Kveton who was an owner of an undivided one-half of the property, there can be a redemption as to such undivided interest under the statute.

Let us consider the purposes of the statute of redemption and the rights of the parties as determined by the statutes and the decisions of our courts.

In the case of Phillips v. Demoss, 14 Ill. 409, Mr. Justice Catoh had this to say about the rights of the parties in redemption, and it has been the law of the state ever since:

“At the October term, 1850, Woods, Christy & Co. obtained a judgment against S. it. Drury and Isaiah Drury, upon which an execution was issued, and levied upon the undivided five eighths of north-east quarter of section five; also the north half of the east half of north-east quarter of section five; also the undivided eighth part of north-east quarter of section five; also the south-east quarter of section six; also the south half of section nineteen; also the east half of northwest quarter of section twenty, and the north-east half of section twenty; all in town sixteen, north range five, west of fourth meridian; which premises were sold to one of the plaintiffs in the execution, on the 31st of December, 1850.

“On the 31st of February, 1852, the purchaser assigned the certificate of purchase to the complainant, who, after the expiration of fifteen months from the day of sale, demanded a deed of the sheriff, who refused to execute it. The premises designated in the first, second, and fourth descriptions above given, belonged to S. R. Drury, and the balance to Isaiah Drury.

‘1 On the 19th of February, 1852, Demoss obtained a judgment before a justice of the peace, against the Drurys, by confession, on a promissory note made by them, dated February 10th, 1852. On the 12th of March, 1852, the justice issued an execution on the judgment, and placed it in the hands of a constable, who, on the same day, returned the execution unsatisfied. On the 17th of March, 1852, a transcript of the justice’s judgment was filed in the circuit clerk’s office, and, on the same day, an execution was issued from the office of the clerk of the circuit court, which was immediately levied upon the above-described property. Demoss then redeemed from the sale under the first execution, by paying the necessary amount of redemption money, and taking from the sheriff a certificate of redemption. The sheriff then again sold the premises under the last execution, when Demoss bid the amount of the redemption money, with interest, and no more, and on that bid the premises were struck off to him.

“The bill charges, that the last judgment was fraudulently confessed by the defendants, ‘for the sole purpose of creating a judgment creditor, by whom they could effect a redemption of their lands. ’

“At the time of the return of the execution, issued by the justice, unsatisfied, the defendants had personal property, out of which the amount of that judgment might have been made, which was well known to both the constable and Demoss.

“At the November term, 1851, of the circuit court, Gkiyre, for the use of Phillips, obtained a judgment ag’ainst S. R. Drury and three others; upon which Demoss, claiming to be the assignee of the judgment, caused an execution to be issued, which was levied upon the same property, and upon which it was again sold on the 24th of April, 1852, to Demoss, as a judgment creditor, for the amount of the redemption money and costs.

‘It is unnecessary to give the subsequent statements of the bill, showing how the premises have been since disposed of.

‘We will first consider the question of fraud as set up in the bill. The substance of that charge is, that the first judgment, which was recovered by Demoss against the Drurys, was confessed by them upon a promissory note, which they had executed; and that it was confessed for the purpose of enabling them to redeem the premises from the first sale. The statute says, that ‘any judgment creditor’ shall have the right to redeem from the first sale. In this case, there is no question that Demoss was such judgment creditor; nor is any question made that as such he did redeem. He exercised then but his legal right. There is no pretence that the debt for which the judgment was confessed was not justly due and owing. But, then, it was confessed for the purpose of creating a judgment, under which a redemption might be made. Does that render it either unlawful or inequitable? Does it violate any of the legal or equitable rights of the first purchaser? We think not. He acquired the alternative right by that first purchase, either to receive the redemption money, which might be paid to the sheriff by the judgment debtors, should they redeem within twelve months, or which might be paid by any junior judgment creditor after the expiration of the twelve months, and before the expiration of fifteen months; or, in case no such redemption should be made either by the judgment debtors or by a judgment creditor, then to a sheriff’s deed. By his purchase he acquired no title to the land, either legal or equitable. His right to the land was no higher or more sacred than it was to the redemption money. When he purchased, knowing that he must either get his purchase-money back again, with ten per cent, upon it, within fifteen months, or get the land, he was aware that others, and not himself, had the right to say which he should take. This was the alternative character of his investment. He knew that either the judgment debtor or any junior judgment creditor might determine that he should take the redemption money instead of the land, and by such determination he was bound by the terms of the law under which he purchased. In view of this he made his bids. The policy of the law is to encourage these redemptions, rather than to suppress them. It was said by this court in the case of Swesy v. Chandler, 11 Illinois, 449: ‘The object of the legislature, in allowing judgment creditors to redeem, was to prevent a sacrifice of the defendant’s estate, and to make it pay as many of his debts as possible.’ If this be the policy of the law, it is but carrying out its purposes, for the debtor to confess a judgment for an honest debt which he owes, for the express purpose of enabling his creditor to redeem, with the hope of realizing more at a second sale, and thus secure a further payment of his debts. The statute holds out no inducements for a speculation at a sheriff’s sale, beyond ten per cent, for the use of the purchase-money and the purchaser can set up no equitable claim beyond that where the redemption is made according to the provisions of the statute. If the judgment under which the redemption was made had been confessed when no debt was due, the case would be widely different, and quite another question would be presented; but that is not pretended. On the contrary, the bill shows that it was on a note executed by the judgment debtors, and there is not an intimation that the note was not tona fide due and owing. It is also averred, that they confessed the judgment for the purpose of enabling themselves to redeem, after the time within which they had a right to redeem. . . .

“There was another objection made upon the argument which we may notice. It was said, that in order to entitle a judgment creditor to redeem, he should have a judgment either at the time of the sale from which he redeems, or at least before the expiration of the twelve months, within which the judgment debtor may redeem. The statute does not say so; but it says, that any judgment debtor may redeem. He may get his judgment the last hour of the fifteen months; and he is as much within both the letter and intention of the statute as if it were of a year’s standing.”

The law is as declared in the opinion written by Mr. Justice Catch in 14 HI. 409, the greater part of which opinion we have cited. It applies to plaintiffs’ interest in the premises, wherein the court says:

“By his purchase he acquired no title to the land, either legal or equitable. His right to the land was no higher or more sacred than it was to the redemption money. ’ ’

In the instant case, in what way are plaintiffs injured? An amount of money equal to that which plaintiffs paid at the master’s sale was deposited by defendant Steinman with the sheriff, in order to redeem from said master’s sale, and this amount with costs and interest could have been received by them upon making application for it. And, as plaintiffs could acquire no interest in the real estate until after the expiration of 15 months following the master’s sale, at which time they would either obtain a deed to the property or get their money back with interest, no loss was sustained. The statute has made ample provision to protect against such loss or injury in this and similar cases. It may well be that the purchaser at the sheriff’s sale will not receive a clear title to the property which he purchases, but that is not the concern of plaintiffs. The rule of caveat emptor applies and whether the purchaser does or does not receive a good title, is no concern of plaintiffs.

In passing upon the redemption law, we call attention to eh. 77, par. 25, sec. 25, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.176], which reads as follows:

“25. Redemption of Parts as Sold.] §25. Any person entitled to redeem may redeem the whole or any part of the premises sold, in like distinct parcels or quantities in which the same were sold.”

In considering the foregoing section in the case of Carabelli v. Carabelli, 266 Ill. App. 453, it is therein stated:

“The various sections of Cahill’s St. ch. 77, relating to redemption, jffí 20, 21, 22, 25 and 26, must be construed so as to give effect to the legislative will, bearing in mind that redemptions are looked upon with favor, and where no injury is to follow, a liberal construction will be given to the redemption laws.”

A great deal has been said in the arguments by counsel relative to the plight of the bondholders if this redemption is permitted to stand. The bid made at the sale was very low and apparently, from the tenor of the bill, plaintiffs had hoped that no one would redeem so that they might become the owners of the property. Plaintiffs’ counsel calls attention to this by saying: “Courts have gone far in modern cases to protect the rights of innocent bondholders.” Citing Pflueger v. Broadway Trust & Savings Bank, 351 Ill. 170; Oswianza v. Wengler & Mandell, Inc., 358 Ill. 302.

We do not think the facts in either of the cases just cited justify us in an attempt to protect the rights of innocent bondholders. So far as we can discern the defendant Steinman is in the same position as the so-called innocent bondholders. He is trying to collect money which apparently is owing to him, so that we could not protect one side without wrongfully injuring the other which is definitely not the function of this court.

The purpose for which a redemption sale is made, as provided by statute, is as was said by Mr. Justice Catoh :

“ ‘The object of the legislature, in allowing judgment creditors to redeem, was to prevent a sacrifice of the defendant’s estate, and to make it pay as many of his debts as possible. ’ . . . The statute holds out no inducements for a speculation at a sheriff’s sale, beyond ten per cent, for the use of the purchase money, and the purchaser can set up no equitable claim beyond that where the redemption is made according to the provisions of the statute.”

The injunction should not be permitted to stand because of the inequitable position taken by the plaintiffs. While this suit was pending, although they obtained an injunction for the purpose of preserving a status, the plaintiffs demanded and obtained from the master in chancery a deed of sale, although the running of the time for the issuance of the bill of sale was caused by the issuance of the injunction which was supposed to stop all proceedings. In addition to that they set up as part of their equitable consideration that they had borrowed $15,000 on the certificate of sale or deed and for that reason they should receive consideration in a court of equity. A complainant cannot be permitted to obtain any advantage in a court of equity by such inequitable conduct. If, what plaintiffs say is true, namely, that this is now a “moot” case, then the maxim “he who seeks equity must do equity” has been entirely ignored. No case has been cited by plaintiffs in support of the contention that where a sheriff has two executions against two tenants in common of certain real estate, and one of the judgments against one of the tenants is found to be invalid, why the sheriff cannot proceed and sell the interest of the other tenant in common for the amount of the judgment against him. Especially, where the entire amount of the foreclosure sale has been deposited with the sheriff as shown by his certificate, and the original purchaser at the master’s sale has available to him all the money that he bid at his sale covering the entire property with interest and costs.

We have carefully gone over this record and we do not see where the plaintiffs' have shown any equities that justify the intervention of a court of chancery, and, particularly so, where the extraordinary relief by injunction is used as in this case for the purpose of protecting the plaintiffs and permitting them to do an inequitable act and obtain an alleged title, by demanding and receiving' from the master a deed to the property, whilst the defendant and the sheriff are at the same time prevented from exercising their rights and duties as provided by statute.

For the reasons herein given, the injunctional order should be dissolved and the judgment order is hereby reversed and the cause is remanded with directions to dissolve the injunction herein and to dismiss the suit for want of equity.

Judgment order reversed and cause remanded with directions.

Hebel and Burke, JJ., concur.


source: Caselaw Access Project

author: Presiding Justice Denis E. Sullivan.

license: Public Domain

text:
    George J. Epstein, Appellee, v. Edward A. Morris, Appellant.
    Gen. No. 40,715.

      opinion filed December 13, 1939.
    Isidore Brown, Albert Langeluttig and Abraham W. Brussell, for appellant; Abraham W. Brussell, of counsel; David I. Spark, for appellee.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


author: Mr. Presiding Justice Denis E. Sullivan

text:
    Christ Liolios, Defendant, for the use of The University Hospital, Plaintiff, Appellee, v. London Guarantee and Accident Company, Ltd., and Sensibar Engineering and Paving Company, Garnishee Defendants, Appellees. On Appeal of A. George N. Spannon, Intervening Petitioner, Appellant.
    Gen. No. 40,733.
    Opinion filed December 13, 1939.
    A. George N. Spannon, pro se, for appellant.
    Louis Steinberg, of Chicago, for appellee; Reuben Freedman, of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This cause has been consolidated with Gen. No. 40,734 filed in this court entitled, Liolios v. London Guar. & Acc. Co., Ltd., 302 Ill. App. 506.

The action arose out of garnishment proceedings which were consolidated for trial in the municipal court, wherein judgment was rendered in favor of the defendant for the use of the University Hospital, plaintiff, against the above-named garnishees for the sum of $526.60, and in favor of the defendant for the use of Dr. A. L. Stearns, plaintiff, against the above-named garnishees for the sum of $352.50. Said garnishment proceedings were instituted after two judgments by confession had been rendered in the municipal court on July 6, 1938, in favor of the respective plaintiffs named above in the amounts mentioned. Garnishment summons was issued in each case on July 7,1938, and served on said garnishees on July 11, 1938.

By leave of court, on August 8,1938, the intervening petition of A. George N. Spannon, adverse claimant, was filed in each of said causes and to said petition no answer or traverse was interposed by any of the parties to said cause.

The court on motion of plaintiffs, at the close of all the evidence, directed a verdict in favor of each of said plaintiffs and against the defendant Christ Liolios, confirming the judgments of July 6, 1938, in the amounts as stated heretofore.

It appears from this record as well as the one in Gen. No. 40,734, that a judgment had been entered in favor of Christ Liolios for the sum of $2,500 because of personal injuries which he received, said judgment being against the Sensibar Engineering & Paving Co., a corporation, the London Guarantee & Accident Co. Ltd., who is the garnishee herein, having issued a policy of insurance, by the terms of which they were to pay any judgments entered against the Sensibar Engineering & Paving Co. This judgment for $2,500 was assigned by Liolios to A. George N. Spannon. Said Spannon who is the intervening petitioner herein was the attorney for Liolios. Spannon had a contract with Liolios whereby he, Spannon, was to receive 45 per cent of the sum recovered, which in the instant case amounted to $1,125, and which sum he was paid. It further appears that Liolios had two other lawyers, namely Wright & Kamin, who claimed $166, and that there were still two others, namely Harry A. Kerins and D. Gr. Michalopoulos, who claimed $100.

It further appears that the appellee, University Hospital, had a judgment note signed by Liolios for $526.60, upon which it confessed judgment; that Dr. A. L. Stearns, plaintiff in G-en. No. 40,734, also had a judgment note signed by Liolios upon which he confessed judgment for $352.50.

The testimony of both Spannon and Liolios shows that while the personal injury case was pending, which period covered several years, Spannon had advanced to Liolios considerable sums of money amounting to between $565 and $855. The evidence regarding the amount which was advanced by Spannon to Liolios, while uncertain and indefinite as to the exact sum, was not contradicted. Liolios while on the stand admitted that he had received as an advancement from Spannon at least $565, and there was no evidence to the contrary.

A court cannot disregard the undisputed testimony, especially where the person who owes the money admits that he owes it. We think the trial court should have allowed the claim of Spannon to the extent of $565. Spannon claimed a balance of $856.25 was due him, but as the initial memorandum for this amount was not produced at the hearing, we are inclined to accept the statement of Liolios as to the amount he owed Spannon. As before stated we think the court erred in not allowing the claim of Spannon. We think the judgment order of the court should be amended to that extent.

For the reasons herein given the judgment of the municipal court is affirmed except as to the allowance to Spannon, the intervening petitioner, which allowance is hereby made for the sum of $565 in favor of Spannon, which sum covers the amount due in both cases and judgment is entered in his favor accordingly. The judgment order as so amended is hereby affirmed.

Judgment order affirmed and judgment here in conjunction with Case No. 40,73d in favor of intervening petitioner Spannon for $565.

Hebel and Burke, JJ., concur.


text:
    C. Liolios for use of Dr. A. L. Stearns, Appellee, v. London Guarantee and Accident Company, Ltd. and Sensibar Engineering and Paving Company, Appellees. Appeal of A. George N. Spannon, Appellant.
    Gen. No. 40,734.
    opinion filed December 13, 1939.
    A. George N. Spannon, pro se; Louis Steinberg, for appellee Christ Liolios; Reuben Freedman, of counsel.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Not to be published in full.’’


text:
    Frank DeCicco, Administrator of Estate of Raymond DeCicco, Deceased, Appellant, v. Joseph Vodrazka, Appellee.
    Gen. No. 40,743.
    opinion filed December 13, 1939.
    Hector A. Bouillet, for appellant; Abraham Miller, of counsel; Joseph C. Pisha and Ewart Harris, for appellee.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    Samuel B. Epstein, Appellee, v. Charles F. Henry et al., Appellants.
    Gen. No. 40,780.
    opinion filed December 13, 1939.
    Walter Hamilton, for appellants; McInerney, Epstein & Arvey, for appellee.
   Opinion try

Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


author: Mr. Justice Burke

text:
    Howard F. Hobbs, Appellant, v. H. M. Gousha Company, Appellee.
    Gen. No. 40,390.

      Opinion filed December 13, 1939.
    Gariepy & Gariepy, of Chicago, for appellant; Fred A. Gariepy, Victor P. Frank and Owen Rall, all of Chicago, of counsel.
    Max Murdock, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

Plaintiff filed his complaint in which he alleged that on November 1, 1933, plaintiff and defendant entered into a written employment contract, which reads as follows:

“Agreement made and entered into this 1st day of November, A. D. 1933, by and between H. M. Gousha Company, an Illinois corporation, with its principal office in the City of Chicago, State of Illinois, party of the first part, hereinafter called the ‘Company’, and Howard F. Hobbs, of Akron, Ohio, party of the second part, hereinafter called ‘Hobbs’;

“Whereas, the party of the first part is engaged in the manufacture and sale of automobile road maps and is desirous of combining the good will, ideas and methods of the said Hobbs and the Hobbs Guide Company and acquiring the right to use his data, drawings, copyrights, engravings, records, correspondence and methods in conjunction with the said Company’s maps; all of which is now the property of the said Hobbs and known as Hobbs Guide Company, and,

“ WBereas, the said Hobbs is the owner and publisher of a series of road guides known as the ‘Hobbs’ Guide’ and has conceived an idea for the combining of his guide data and service with the automobile road maps of the said Company and desires to enter the employment of the said Company and to give it the right to use the said ‘Hobbs’ Guide’ methods and to give to the said Company the right to use any and all data, drawings, copyrights, engravings, records and correspondence heretofore used by the said Hobbs under the name of ‘Hobbs’ Guide Company’;

“Now, Therefore, this agreement witnesseth:

“That for and in consideration of the sum of One Dollar, lawful money of the United States, receipt whereof is hereby acknowledged, and in further consideration of the mutual covenants and conditions hereinafter expressed, the parties to these presents agree: “ (1) The Company hereby engages the services of the said Hobbs, together with the right to the good will of the Hobbs’ Guide Company, including the right to use all data, drawings, copyrights, engravings, records, correspondence and methods heretofore used by the said Hobbs in conducting his business for a period of one year from the date of this agreement and for such further time as is hereinafter provided for, subject, however, to the right of either party to terminate this contract as hereinafter provided.

“ (2) The said Hobbs hereby agrees to make available to the said- Company all data, drawings, copyrights, engravings, records, correspondence and methods pertaining to the business heretofore known as ‘Hobbs’ Guide’, including the right to use any and all information heretofore compiled by the said Hobbs, without restriction except as hereinafter limited in this agreement. The said Hobbs agrees to devote his entire time, skill, energy and attention and the best of his ability to the business of the Company.

“ (3) The said Hobbs during the time of his employment shall have charge of the formation and organization of a department or division in the Company’s business to be known as the Hobbs’ Guide Division, or some similar appropriate name, and agrees to use his best efforts in cooperating with the executives of the Company in the promotion and exploitation of tourist guide information of the said Department and the preparation of tourist guide information to be employed by the Company in conjunction with its maps, and to train the personnel employed by the Company in such Department and further agrees to perform all other duties necessarily involved in such work, including such specific duties as the Board of Directors shall from time to time reasonably require of the said Hobbs.

“(4) As and for compensation for the services so to be rendered by the said Hobbs and as and for the right to use the said Hobbs ’ Guide heretofore compiled by the said Hobbs, the Company agrees to pay to the said Hobbs the sum of Three Hundred Dollars ($300.00) per month salary and Five Hundred Dollars ($500.00) per month traveling expenses, beginning on the day of the date of this contract and payable on the first and 15th day of each month thereafter as long as this contract shall remain in force. It is the spirit of this agreement, however, that the Company expects to readjust the compensation of the said Hobbs annually on or about the date of the said contract and that if the net profits of the Company are substantially and materially increased as a result of the efforts of the said Hobbs and the application of the Hobbs’ Guide material to the Company’s business, then the Company agrees to recognize the value of the said Hobbs ’ efforts and to readjust his compensation by bonus or otherwise as the parties hereto may agree.

“ (5) It is expressly agreed, however, that the Company shall have the right after one year hereafter to dispense with the services of the said Hobbs for good cause or that said Hobbs may resign upon the giving of notice hereinafter provided for, or if for any reason the said Hobbs becomes permanently physically disabled or discontinues his connection with the Company, then the Company shall have the right to continue to use the idea and material heretofore embodied in the Hobbs’ Guide and any additions or improvements therein made by the said Hobbs while in the employ of the Company, whether copyrighted by the said Hobbs or otherwise, for such period of time as the said Company shall so desire, upon the following terms and conditions :

“ (a) In the event that the said Hobbs has been in the employ of the Company for the period of one (1) year, but less than two (2) years, the said Company agrees to pay to the said Hobbs, if living, or to his personal representative if the said Hobbs is not living, the sum of Three Thousand Dollars ($3,000.00) per year for each year or part thereof that the Company used the said Hobbs’ Guide material until the sum of Fifteen Thousand Dollars ($15,000.00) shall have been paid.

“(b) In the event that the said Hobbs has been in the employ of the Company for the period of two (2) years, but less than three (3) years, the said Company agrees to pay to the said Hobbs if living, or to his personal representative if the said Hobbs is not living, the sum of Three Thousand Dollars ($3,000.00) per year for each year or part thereof that the Company uses the said Hobbs’ Guide material until the sum of Twenty-Four Thousand Dollars ($24,000.00) shall have been paid.

“(c) In the event that the said Hobbs has been in the employ of the Company for the period of three (3) years, but less than four (4) years, the said Company agrees to pay to the said Hobbs, if living, or to his personal representative if the said Hobbs is not living, the sum of Three Thousand Dollars ($3,000.00) per year for each year or part thereof that the Company uses the said Hobbs’ Guide material until the sum of Thirty Thousand Dollars ($30,000.00) shall have been paid.

“Subject to the condition for every year exceeding three (3) years that the said Hobbs is employed by the Company on a salary or other basis of compensation, that the obligation of the said Company is to pay the Three Thousand Dollars ($3,000.00) per year as specified in Paragraph ‘c’ above shall be reduced at the rate of Three Thousand Dollars ($3,000.00) per year in direct proportion to the number of years over and above the three (3) year period that the said Hobbs is so employed by said Company.

“(6) The said Hobbs expressly agrees that if for any reason whatsoever the Company discharges him or he resigns or discontinues his employment with the Company and so long as the Company continues to employ the idea and material contained in the Hobbs’ Guide and continues to pay to the said Hobbs or his personal representative the sums of money herein-before agreed to be paid in Paragraph ‘C,’ that the said Hobbs will not either alone or in partnership with any person or persons whomsoever, or in any other form of business association, carry on the trade or business of furnishing tourist guide information or any branch thereof within the confines of the United States of America at any time within the period during which the Company shall continue to use and employ the ideas and material of the Hobbs’ Guide as provided in this agreement.

“(7) It is further agreed that whenever the Company discontinues the use of the Hobbs’ Guide ideas and the material contained in the Hobbs’ Guide and discontinues the making of the payments set forth in Paragraph 5, that then all essential data, records, correspondence, drawings, engravings, copyrights used in conducting and publishing the Hobbs’ Guide Department in the said Company shall be considered to be the property of said Hobbs and the Company further agrees that all property rights therein shall revert to the said Hobbs and that they will, upon request execute proper instruments transferring title to any and all copyrighted matter or other property to the said Hobbs and he shall then have the right to reengage in competitive business as before and the said Company' further agrees that in the event they discontinue the sale of the Hobbs’ Guide idea and material as aforesaid, that they will discontinue that branch of their business and that they will not imitate or duplicate the Hobbs’ Guide or otherwise compete with the said Hobbs.

“ (8) It is further agreed that for the period of one year from the date of this contract that the said Company shall show by suitable markings that the Hobbs’ Guide material and data used on Gousha maps shall be identified by some marking as ‘Hobbs’ Guide’ or some other similar designation indicating that H. F. Hobbs is the author thereof. The Company further agrees that the existing policy of the Hobbs’ Guide to tell the truth without fear or favor and the present policy of not selling ads, etc., to hotels, camps and eating places shall not be changed without the consent of H. F. Hobbs.

“(9) The Company agrees that for the protection of the said Hobbs during one year from the date of this agreement that it will cause to be issued a life insurance policy, in a reputable insurance company, on the life of the said Hobbs and will pay the premium thereon for one year from the date of this agreement. The beneficiary named in said policy shall be anyone designated in writing by the said Hobbs and shall provide for the payment of the sum of Fifteen Thousand Dollars ($15,000.00) in installments of Three Thousand Dollars ($3,000.00) per year for five (5) years to be paid to said beneficiary if the said Hobbs shall die within the period of one year from the date of this agreement, subject to the condition that if the employment of the said Hobbs by the Company shall be terminated before one year from the date of this contract, the Company reserves the right to cancel such insuranee as of the date of the termination of said employment.

“(10/14/33 This paragraph is subject to further discussion. H. F. Hobbs, J. J. Krez)

“It is expressly agreed, however, that on and after one year from the date of this contract either party shall have the right to terminate this agreement with or without cause by giving to the other party three (3) months’ previous notice in writing, it being further agreed that if the Company terminates the employment of the said Hobbs without good and sufficient cause and elects to continue to use the idea and material embodied in the Hobbs’ Guide as provided in Paragraph 5, that they do agree to pay therefor the sum of Three Thousand Dollars ($3,000.00) per year for each year or part thereof that the Company uses the said Hobbs’ Guide material, until the sum of Thirty Thousand Dollars ($30,000.00) shall have been paid, anything in Paragraph 5 of this agreement to the contrary notwithstanding.

“In Witness Whereof the said Hobbs has set his hand and seal and the said Company has caused these presents to be executed in its name by its President and Secretary and the seal of the Company affixed the day and year first above written.

“Howard F. Hobbs (Seal)

H. M. Gousha Company

By---

President

By John J. Krez, Secretary.”

that he entered into employment under the contract and acted thereunder until February 5, 1936, when defendant discharged him without cause, in violation of the agreement; that he performed all the duties imposed upon him under the contract. Plaintiff further alleged that prior to the year 1921 he conceived the idea and use of the “Hobbs Guide”; that in 1921 he caused the publication and circulation of the guide to be made; that the guide was used and sold throughout the United States and had a large circulation among travel bureaus, automobile tourists, gasoline companies and in the automobile business or trade; that the guide was entirely original in type and information therein given; that the “Hobbs Guide” has always informed the reader truthfully “without fear or favor” about routes, hotels, camps, eating places, mileage and road surfaces and gave other authoritative tourist information; that in 1933 the guide was nationally known and was used extensively throughout the United States; that plaintiff’s earnings, profits and income from the guide for the years previous to 1933 were about $15,000 per year; that at all times before and on November 1, 1933, he was, and at the time of filing* the complaint, still was the sole owner and publisher of “Hobbs Guide” and the numerous data and material, drawings, records, copyrights, methods and correspondence combined and used exclusively in forming and publishing* the guide; that the materials and good will were of g*reat value; that since becoming employed by defendant, he made available at all times to defendant, as requested, the records, correspondence and methods pertaining to the business of the guide, and the right to use any and all information compiled by plaintiff without restriction; that at all times prior to his discharge he devoted his entire skill, time, energy, attention and best efforts to defendant’s business and performed all duties and work required of him by the agreement; that since November 1, 1933, defendant used and was at the time of filing* the complaint, using and selling, publishing* and offering for sale to the public and oil companies said “Hobbs Guide,” bearing-said name on the face of the guide and also bearing* the name “Gousha Guide”; that up to January 15, 1936, defendant paid plaintiff the sum of $800 per month as and for Ms services; that on February 6,1936, plaintiff made formal demand on defendant to elect concerMng the redelivery of the “Hobbs Guide”; that defendant continued to employ the idea and material contained in the “Hobbs Guide” and is daily selling and attempting to sell plaintiff’s maps, engravings, drawings and the “Hobbs Guide” to the public and to several oil compames for large sums of money; that the engravings, materials, drawings and maps and the “Hobbs Guide” retained by defendant, are of great value to plaintiff and are without duplication on the market; that by reason of the agreement plaintiff will be prevented from seeking to engage in any employment in competition with defendant in the sale and use of the idea of the “Hobbs GMde”; and plaintiff prays that he be awarded a judgment against defendant for $3,200 for services from January 16, 1936, to the date of the discharge of plaintiff and thereafter as by the terms of the contract provided; and prays for relief in the alternative that if defendant elects to retain the “Hobbs Guide” that defendant be required to pay the sums of money provided for in the contract; that if defendant consummates the sale of the gMde that the defendant be decreed to pay plaintiff the sum of $30,000; that if defendant elects not to retain the guide, that defendant be required to execute all proper instruments transferring title to the “Hobbs Guide” and all of plaintiff’s property to the plaintiff; that defendant be restrained from further using and selling-plaintiff’s property and be required to elect concerMngits intention to retain and use plaintiff’s property; that the court award plaintiff judgment from time to time for such sums of money as accrue to plaintiff from time to time under the terms of the contract and the conduct of the parties; that he be awarded judgment in the sum of $30,000 or such other sum as under the agreement, is just and proper, and that he be awarded an injunction restraining defendant from selling or offering for sale or from using plaintiff’s maps, drawings, the “Hobbs Guide,” road maps, correspondence, engravings, copyrights, all data, books and records of accounts receivable and all materials of plaintiff in defendant’s control and possession, under said agreement, until the further order of the court. The complaint was verified by an oath as to its truth by plaintiff.

Defendant filed its answer on March 9, 1936, and in paragraph 2 admitted the execution of the contract set out verbatim in the complaint; admits the plaintiff entered into the employ of defendant on November 1, 1933, denies that the employment continued to February 51, 1936, and states that the employment was terminated on January 5, 1936, and that on that daté defendant discharged plaintiff for good and sufficient cause, said cause being that the plaintiff then and theretofore failed and refused to perform his duties in said employment. Paragraph 4 of the answer denied that the contract was proposed and drafted by defendant and alleged that the terms were proposed and prepared by plaintiff, and that defendant complied with all of the terms and conditions of the contract. The answer admitted that plaintiff on November 1, 1933, delivered and made available to defendant certain data, records, correspondence and material theretofore pertaining to the “Hobbs Guide”; that defendant had not used the material delivered and is not now making use thereof, but has offered and now offers to return the data, records, correspondence and material to the plaintiff; admits that it paid plaintiff the sum of $800 per month continuously from November 1,1933, to and including January 15,1936; that the payments were $300 per month salary and $500 per month traveling expenses; that plaintiff had not earned any salary and had not incurred any traveling expenses since January 15, 1936; that since November 1,1933, plaintiff caused upwards of $100,000 of the funds of the defendant to be expended in and about collecting and compiling data, drawings, copyrights, engravings and other records relating to tourist guide information and in printing parts of the same under the title “Gousha Guide” with the name of the plaintiff printed thereon, with the purpose and intention of making use of the same for his own private purpose and for his own benefit and profit; that plaintiff neglected, failed and refused to exploit the same for the benefit and profit of the defendant; that plaintiff neglected, failed and refused, though requested, to cooperate with defendant in an effort to sell the guide, or to find any market or customer for the publication, materiáls or service; that on February 6, 1936, plaintiff served a written demand on defendant, requiring defendant to state its intention and election with regard to the use of the “Hobbs Guide” and material within three days. The answer denied that defendant was selling or attempting to sell any of the property of plaintiff and averred that it was offering for sale its own property, publication and service, and denied that plaintiff was entitled to any of the relief sought. The answer is signed by the corporation by E. A. Dougherty, its assistant secretary and treasurer. The answer is verified by an affidavit by E. A. Dougherty, who swears that she is authorized to sign the answer, and “to make this affidavit on behalf of said company.” The affidavit further states that she has read the answer and that she is acquainted with the matters therein stated and that the same is true in substance and in fact.

The cause was referred to a master in chancery, who began hearing witnesses on March 19, 1936. Proofs were closed on August 5, 1936. The master made his report and recommendations on July 19, 1937, wherein he found that defendant discharged plaintiff without good cause; that under paragraph 10 of the contract plaintiff is entitled to receive the sum of $3,000 per year for each year that defendant used the “Hobbs Guide” material until the sum of $30,000 shall have been paid; that at the time of his report, plaintiff was entitled to the sum of $3,000 for the year beginning 1936, and for the sum of $3,000 for the year beginning 1937, and that further there will be due from time to time the sum of $3,000 for each year during which the company continues to use Hobbs’ material until the sum of $30,000 shall have been paid. He recommended that in any decree entered, the court retain jurisdiction to assess the amounts from time to time as damages to the plaintiff under the terms of the agreement, and that when defendant elects to discontinue the use of the “Hobbs Guide” and materials, then and at that time defendant be required to execute instruments transferring title to any and all copyrighted matter or other property, and to return to plaintiff all the essential data, records and correspondence, and that thereupon plaintiff shall have the right to enter into the trade or business of furnishing guide information. He found that defendant owed plaintiff $400 as salary for the month of January, 1936; $2,400 as salary for the months of February, March and April, 1936, and $6,000 for the years beginning* May 1, 1936 and May 1, 1937, at $3,000 per year on the basis that defendant had not elected to discontinue the use of the “Hobbs Guide, ’ ’ and recommended that a judgment be entered in favor of plaintiff, and that the court retain jurisdiction to enter judgment each year for such additional amount as becomes due under the terms of the contract if defendant continues to use the “Hobbs Guide,” and that the court also retain jurisdiction for the purpose of entering an order enjoining defendant from competing with the plaintiff in the business of furnishing the “Hobbs Guide” or a guide similar thereto upon defendant electing* to discontinue the use thereof. Defendant filed 61 objections to the master’s report, all of which were overruled. Thereafter, by an order of the court, the master was required to receive in evidence certain exhibits, known as defendant’s exhibits 114 and 115, which he had theretofore declined to receive, and to report thereon. Exhibit 114 contained the concluding paragraph of the contract, but was not signed, and exhibit 115 was page 7 of the contract, the same as it appears in the copy attached to the complaint. There was also a special reference to the master on a dispute as to whether the contract introduced into evidence was in the same condition at that time as it was when it was so introduced. The master found it was in the same condition and that no changes had been made therein. On February 8, 1938, the court entered an order that paragraph 2 of the defendant’s answer “be stricken out of said answer and that said original paragraph 2 be treated as no part of the record, and that defendant have leave to file instanter the amended paragraph 2 now presented to the court, which amended paragraph 2 is now taken to be a part of said answer in lieu of said paragraph so stricken. ’ ’ The amendment to defendant’s answer was filed on February 8, 1938. It recites that pursuant to leave of court first had, it amends its answer by striking out paragraph 2 and inserting in lieu thereof the following:

“Defendant admits that both the plaintiff and John J. Krez as secretary of the defendant signed the page numbered 7 of the purported contract attached to the complaint herein, and the defendant further admits and states that, at the same time the plaintiff and the said Krez further signed on the same page the endorsement ‘This paragraph is subject to further discussion’, but defendant denies that such signing was on November 1st, 1933, but states that the same was on October 14, 1933, and defendant further denies that said sheet so signed was then or at any other time joined to or part of the purported contract set forth in said complaint with the knowledge or consent of this defendant, and denies that said purported contract in writing was ever delivered or entered into by this defendant, and denies that the document so signed by plaintiff and said Krez as aforesaid ever constituted a contract between plaintiff and defendant. Defendant admits that plaintiff entered defendant’s employ but denies that such employment was under said purported contract set forth in said complaint, and defendant denies that said employment continued to February 5, 1936, but states that, on January 15, 1936, the said employment was terminated in that, on said date, the defendant discharged the plaintiff for good and sufficient cause, said cause being that the plaintiff then and theretofore failed and refused to perform his duties in said employment, and defendant states that plaintiff thereupon and thereafter continuously persisted in such refusal.

“The H. M. Gousha Company, a corporation

Defendant

By Eleanor A. Dougherty.”

It is verified by Eleanor A. Dougherty, who swears that she is assistant secretary and treasurer, and is authorized to sign the aforesaid answer and to make the affidavit, and that she “has read the aforesaid answer and is acquainted with the matters herein stated and that the same are true in substance and in fact.” It will be observed that the amended answer constitutes a departure from the defense theretofore asserted. During the hearings of voluminous testimony before the master, both parties proceeded on the basis that the contract was a valid contract. Under the supplemental reference the master again found in favor of plaintiff. Defendant again filed objections, which were overruled. The objections stood as exceptions and the chancellor entered a decree sustaining the exceptions and dismissing the complaint for want of equity, from which decree this appeal is prosecuted.

Plaintiff’s theory is that the written contract sued on is valid and binding and that under its terms, he is entitled to the moneys found due him by the master; that his discharge was wrongful and caused by the desire of a new management to cut down expenses; that the marginal notation opposite the paragraph setting forth plaintiff’s rights in the event of a termination of the agreement with or without cause, “This paragraph is subject to further discussion,” was not intended to affect and did not affect the validity of the contract; that if defendant had any rights under such marginal notation it waived them by acting under the contract for 26 months without protest; that gaining possession of plaintiff’s valuable tourist guide business by treating such contract as valid estops defendant to contend that the contract never existed, and that the trial court erred in sustaining the exceptions to the master’s report and in refusing to enter a decree in favor of plaintiff as recommended by the master. Defendant’s theory of the case is that plaintiff’s employment by defendant was terminated for just and ample cause, that cause being the failure and refusal of the plaintiff to perform his duties; that plaintiff entered defendant’s employ under a parol contract which did not include the “confiscatory” provisions on which the present claim is based; that the alleged written contract with those provisions was later formulated and proposed by plaintiff but was never accepted by defendant, and that the terms thereof are not a proper subject for specific performance. The evidence introduced at the hearing’ is quite voluminous. Without pausing to state any portion of the evidence in detail, it will suffice for us to say that we have given it careful consideration.

Plaintiff in 1920 was the Pacific coast representative of Band McNally and Company. H. M. Gousha, who later organized and became president of defendant corporation, was then the sales manager of Band McNally and Company. Plaintiff’s duties with Band McNally and Company were to prepare and sell its California map. In 1921 plaintiff conceived the idea of compiling automobile tourists guides and he issued such a guide under the name of “Hobbs Guide.” Thereafter in 1923 he made arrangements with the Mohawk Bubber Company, under which that company sponsored the guide under the name of ‘ ‘ Mohawk Hobbs Guide. ’ ’ The guides were copyrighted in the name of the Mohawk. Bubber Company. The copyrights were assigned to plaintiff when the agreement was terminated in 1931. In October, 1931, he entered into an agreement with the Commercial Printing and Lithographing Company, whereby that company agreed to furnish the capital for the production of the “Hobbs Guide” for a period of two years, by advancing funds at the rate of 50 cents per mile of road covered by the guide. Under the latter arrangement, the plaintiff sold the B. P. Goodrich Company the “Hobbs Guide” under its requisitions. Plaintiff’s net income from the guide for 10 years prior to November 1, 1933, exceeded $15,000 annually. The guides were published in connection with publicity by national advertisers. On September 17, 1930, Hobbs purchased from the Mohawk Bubber Company the material then remaining on hand. He spent the following 11 months seeking another “sponsor,” which he found in the Goodrich Company. With them and with the Commercial Printing and Lithographing Company he made an arrangement similar to the one with the Mohawk Bubber Company. The “sponsors” furnished all the money. Plaintiff had invested a small amount before starting with the Mohawk Bubber Company, but thereafter he invested nothing. On September 30, 1933, plaintiff sought employment with defendant. His pay and expense allowance began October 1, 1933. The “Hobbs Guide” consisted of a series of pamphlets covering the main motor trunk routes of the United States and contained distinctive and original information not found in any other guide or obtainable from any other source, such as the profile and condition of the road, the grading of hotels, eating places and camps, etc. At the top of each pag'e was a picture or chart that revealed at one glance, every bad stretch of road, whether the country was level or hilly and how far apart each town was, and the points of historical interest on the route. The selection of the best routes was indicated and the guide commented on the physical and moral cleanliness of tourist camps and whether the hotels were old or new. The work of compiling the guides took 13 years of research in traveling over roa;ds and investigating conditions and was done entirely under the supervision and direction of the plaintiff. Prior to November 1, 1933, there was no other automobile guide on the market giving the type or kind of information contained in the “Hobbs Guide.’’ It was considered by the tourist bureaus and the public as reliable and dependable. Defendant, H. M. Gousha Company, published automobile road maps. Prior to November 1, 1933, it published no road guides. Defendant did not have the information, nor did it publish a guide similar to the “Hobbs Guide” prior to November 1, 1933. Plaintiff discussed the question of merging his guide and defendant’s map with the directors of defendant corporation. The parties discussed the drafting of a contract and the vice president of defendant corporation suggested that plaintiff see defendant’s attorney. After a discussion between the parties, defendant’s attorney prepared a draft of the contract. The contract consisted of seven pages and was signed by the vice president and plaintiff on October 14, 1933. Plaintiff took all the sheets of the duplicate of the contract and the vice president retained all of the sheets of the original of the contract. Prior to the execution of the contracts, the vice president and plaintiff signed the following handwritten notation on the margin opposite the last paragraph on page 7: “10/14/33 This paragraph is subject to further discussion.” Hobbs entered upon his duties and from November 1, 1933, to the end of that year, he spent one week in the office editing copy. In 1934 he spent five weeks in the office editing copy and preparing an exhibit for the Ford Motor Company. In 1935, he spent six months in the office supervising guide production and editing copy and drawings. At the request of defendant, he came from the west coast about the middle of January, 1936. The balance of the period he was traveling on the road training field men and procuring data for the guide. During that period he traveled throughout and covered all the States of the Union. Originally, the parties contemplated producing a series of guides, combining the “Hobbs Guide” with defendant’s map, in much the same form as the “Hobbs Guide” pamphlets. However, it was later decided to issue a much more pretentious guide and map with an elaborate cover design and of entirely different dimensions. The plan was to issue a series of 15> grades to cover a quarter of a million miles of road, to be marketed by obtaining a national advertiser as a sponsor, and by circulating the guide through automobile clubs, book stores, news stands and by mail. The plan for marketing the guide was vague and nothing very definite was decided. Plaintiff constantly urged defendant to secure a circulation manager to market the guide through newsstands and tourist bureaus and thus make it possible to secure a national advertiser to sponsor the guide. Five of the fifteen guides were completed and printed and the material for the remaining ten guides was practically complete with the exception of some slight checking of some road data. The cost to defendant of operating the Hobbs Division was estimated at $128,000. Until January 15, 1936, the relations between the parties were amicable, there was no complaint as to plaintiff’s work, he received his salary, he co-operated with the company and the company cooperated with him. On January 9,1936, Robert Erving became treasurer and general manager of defendant corporation. He had not been connected with the corporation prior to that time. In December, 1935, Erving learned through hearsay that plaintiff had a contract with defendant. Erving saw the contract for the first time on January 10, 1936. Erving had purchased a large block of stock in the corporation and from that time on was dominant in dictating the policies of the corporation. On December 26, 1935, Gousha telegraphed plaintiff, who was on the Pacific coast, to be in Chicago not later than January 10, 1936, to' work out complete plans for finishing and merchandising the guides. Plaintiff arrived in Chicago on January 13, 1936. A day or two after arriving in Chicago, plaintiff saw Erving who said that he had a large investment in the guide and that he would be unwilling to. spend any additional money in the development or continuation of activities until such time as a definite sales program or some definite means of securing a return, were attained. He informed plaintiff that he was off the payroll, that he could take care of himself until such time as a sale could be made or some definite prospect could - be secured. - Gousha'-went on a trip to New York to interview some péople in an endeavor to sell thé guide. Plaintiff héld himself in readiness tó perform any services requested of him. On February 5,1936, defendant, by its general manager, wrote plaintiff that he had been discharged from active duty and removed from the payroll, pending the results of an effort being made to secure a purchaser for the guide, and that they would defer discussions as to any further arrangements for his employment or for the release of the Gousha guide data and material, or payment of a royalty for the use of it, or his re-employment, until a reasonable time could be devoted to testing the market. The letter acknowledged demands by plaintiff’s attorney. The letter continued stating, “We have this day advised you that while we will not now pay you either salary or expenses, we will, before February 15th, go ahead and, retroactive to January 15th, to which date you were paid all claims for salary and expenses, either reinstate your employment on a basis satisfactory to both of us, or arrange for the continued use of the guide without your services on a basis materially satisfactory, in recognition of your alleged copyright interest in the guide, or abandon it. We wish to state that we are not clear as to the intention of an alleged agreement which you have pertaining to employment, and prefer to wait a few days until Mr. Gousha returns from New York where he is testing the salability of the guide, before we attempt to interpret the application of the agreement to the situation which we now confront.” No election was made by the defendant company, as inferred in its letter of February 5, 1936.

The first proposition for us to resolve is as to whether there was a valid written contract. Plaintiff insists that there was and defendant is equally insistent that there was no written contract, but that the relationship was initiated and continued under a verbal contract. The parties negotiated for a written contract. Defendant later drafted the contract, and plaintiff and defendant, by its vice president, signed the contract. Defendant maintains that the marginal note — “This paragraph is subject to further discussion,” shows that the parties’ minds did not meet and that, therefore, no written contract was entered into. While the record does not clearly show that the parties thereafter discussed the paragraph of the contract, or any part of the contract, the evidence is convincing that the acts and conduct of defendant constituted a recognition of the contract. Defendant does not point out the terms of the oral contract, which he states the parties acted under. The conduct of the parties, after the execution of the written contract, establishes that they were substantially carrying out the terms of the written contract. At the time Erving discharged plaintiff, he knew of the written contract, as he refers to it as an alleged contract. It is apparent that he was endeavoring to act within the contract. The original answer admitted the contract. After the master’s report was presented, defendant obtained leave to amend the second paragraph of the answer. The order which the court entered, struck out the second paragraph and stated that the paragraph was to be treated as no part of the record. Paragraph four of the original answer, however, in effect, admits the contract and stated that it complied with the terms and conditions thereof. Paragraph four was not stricken. The answer and amended answer are under oath and are verified by Miss Dougherty. She swore she had authority to make the affidavit, that she had knowledge of the facts, and that the facts stated in the answer were true. We have carefully read the cases of Maher v. Bull, 39 Ill. 531, and Decatur Coal Co. v. Clokey, 332 Ill. 253, and we do not believe that they are applicable to the situation presented here. Certainly, in determining the issues, the court had a right to consider the contentions of the parties during the time the case was heard. The defendant, by his answer and by the theory that he adopted during the hearings, admitted the validity and existence of the written contract. We find that the evidence clearly establishes that the respective parties executed the written contract, that they treated it as a valid contract and that they acted under it as a valid contract.

Hobbs performed the duties called for by the contract. There was no complaint that he was violating the contract. The relationship between the parties was harmonious until Erving purchased a controlling interest in the corporation. He ascertained that the corporation had expended about $128,000 in the Hobbs Guide phase of the business. An examination of his testimony shows that while he took plaintiff off the payroll as of January 15, 1936, he intended to restore him to the payroll later, and even contemplated paying plaintiff a larger salary. Defendant contends that plaintiff did not co-operate and carry out directions for the sale of the guide. This contention is not sustained by the evidence. The conduct of Erving and of the others is not consistent with their later contentions. We, therefore, find that defendant discharged plaintiff without good cause.

After it became apparent that defendant was not going to continue to carry out the terms of the contract, plaintiff insisted on defendant deciding on its course of action under the contract. Defendant, in its letter of February 5, 1936, indicated that it was going to wait a reasonable time in order to determine what to do, and that it would, before February 15, 1936, either reinstate the plaintiff “on a basis satisfactory to both of us, or arrange for the continued use of the guide without your services on a basis materially satisfactory” in recognition of his alleged copyright interest in-the guide, or abandon it. Defendant did not thereafter advise plaintiff what it would do. In its original answer it did offer to return to plaintiff the data,- records, correspondence and material originally made available to defendant. During the trial Erving testified that Gousha was “revising the idea of the thing and told me he expects to present it in revised form in the near future.” The evidence shows that defendant decided to retain the guide. It was endeavoring to secure a purchaser for the same. The contract provides that whenever the company discontinues the use of the Hobbs Guide ideas and the material contained in the Hobbs Guide, and discontinues the making of payments, then all the essential data, records, correspondence, drawings, engravings and copyrights used in conducting and publishing the Hobbs Guide Department in the defendant company, shall be considered to be the property of plaintiff. The company further agreed that all property rights shall revert to plaintiff, and that the company will, upon request, execute proper instruments transferring title to any and all copyright matter and other property to plaintiff, and that they shall then have the right to re-engage in competitive business as before. The company agreed that in the event it discontinued the sale of the Hobbs Guide idea and material that it would discontinue that branch of the business and would not imitate or duplicate the Hobbs Guide, or otherwise compete with Hobbs.

Defendant urges that the written contract purports to prohibit plaintiff from carrying on his trade or business of furnishing tourist guide information within the confines of the United States at any time within the period during which the company shall continue to use his ideas, and that, therefore, the contract is an unreasonable restraint of trade and against public policy, and is, therefore, void. Defendant did not raise such a defense by motion to strike, or in its answer or amended answer. During the hearing defendant treated the contract as¡ valid. At this time it will not be permitted to urge the point. Defendant also argues that plaintiff’s complaint is essentially a bill for specific performance. It urges the application of the rule that even where the terms of the contract are clear and unambiguous, specific performance is not a matter of right but rests in the sound discretion of the court. Defendant also argues that the contract is outrageous and that it is the kind of a contract that the court would be loath to enforce. Defendant filed its answer and its amended answer without raising any question as to the jurisdiction of a court of equity to grant the relief prayed. Neither side demanded a jury trial. The prayer of the complaint is in the alternative. We are unable to say that the contract is unreasonable. The amount required to be paid in the event plaintiff was discharged without good cause, is not unreasonable. It would be very difficult to ascertain the damages. The contract was fairly entered into, no charge of fraud is leveled against plaintiff. The parties are bound by the written contract, which was to the mutual advantage of both. Defendant was laying out large sums of money and plaintiff was devoting his talents and energy toward the enterprise. Good business judgment dictated that the parties should enter into a written agreement governing their relationship. It was only natural that the corporation would desire to be protected in the use of the investment that it had made, and that plaintiff should desire to be protected against sudden discharge after having devoted his talents and energy to the enterprise, with the prospect of only limited compensation.

As plaintiff was not traveling after the middle of January, 1936, we are of the opinion that he is entitled to a salary at the rate of $300 per month for three months, commencing with January 15, 1936, and to $3,000 per year for each year commencing with April 15, 1936; that if defendant continues to use the idea and material of the Hobbs Guide Division, that the court retain jurisdiction to enter judgment each year for such additional amount as is due under the terms of the contract. Therefore, the decree is reversed and the cause is remanded to the superior court of Cook county with directions to enter a decree in accordance with the recommendation of the master in chancery, except that the judgment shall be based on a salary at the rate of $300 per month for three months from January 15, 1936. Judgment shall also be entered for an additional sum of $12,000, the amount due under the contract for the years beginning May 1, 1936, May 1, 1937, May 1, 1938 and May 1, 1939, at $3,000 per year, and that the court shall retain jurisdiction in the cause to enter judgment each year for such additional amount as is due under the terms of the contract, if defendant continues to use the Hobbs Guide idea and material.

Reversed and remanded with directions.

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

On Rehearing.

We have carefully considered the petition for rehearing and are satisfied that the opinion disposes of all points raised in the briefs. We considered, but did not comment, on the case of Lambert v. Alcorn, 144 Ill. 313. In his brief in the instant case, defendant argues that “plaintiff has no right to enjoy the use of these materials and at the same time to collect compensation for a use that is not made. He should have admitted or stricken the one from his bill.” Section 34 of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, §158; Jones Ill. Stats. Ann. 104.034] provides that relief may be asked in the alternative. Section 43 of the same act provides that when a party is in doubt as to which of two or more statements of fact is true, he may state them in the alternative, and that a bad alternative shall not affect a good one.

In the Lambert case a bill of complaint was filed for the purpose of procuring a permanent injunction, restraining the defendant from tiling his farm land. It was asserted that the tiling would cause surface water to flow other than in its natural way, thereby flooding complainant’s lands. A temporary injunction was granted. On the hearing the court decided mainly in favor of the defendant. However, partial relief was granted to. the complainant. The defendant filed suggestions for damages and sought to recover attorney’s fees and other expenses that he incurred because of the granting of the temporary injunction. We are of the opinion that the cited case is not applicable to the facts in the case at bar.

Having reconsidered all of the points raised, we will adhere to the views expressed and the directions given in the opinion heretofore filed.

Reversed and remanded with directions.

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


author: Justice Burke.

text:
    Charles A. Coey and Carrie H. Coey, Appellants, v. R. H. Cary, Appellee.
    Gen. No. 40,653.
    opinion filed December 13, 1939;
    rehearing denied December 27, 1939.
    Chancellor & Chancellor, for appellants; Justus Chancellor, of counsel; Ross D. Netherton, for appellee.
   Opinion by

Justice Burke.

“Not to be published in full.’’