author: Mr. Justice Wells

text:
    Otto Bilhuber et al., Appellees, v. Bilhuber-Wawak Company et al., Appellants.
    Gen. No. 31,325.
    1. Equity — clean hands. A suitor must come into a court of equity with clean hands.
    2. Equity- — corporate director sharing in illegal transaction not to obtain relief from the other directors. A director, officer, stockholder and dominating manager of a corporation, who votes with the other directors, who are officers and majority stockholders, for a fictitious increase in salaries to reduce illegally the corporate Federal income tax, and who receives with the other directors stock in payment of the fictitious salaries, does not come into equity with clean hands in his suit against the other stockholders and cannot obtain a cancellation of the stock nor require such others to account for corporate money they may have wrongfully diverted or received in other instances.
    3. Agency — notice to agent imputable to principal. Notice to an agent touching the subject matter of his agency or in regard to the transaction in which he is engaged is notice to the principal.
    4. Husband and wife- — right of wife receiving stock through husband’s participation in fraudulent issue. A wife is bound by the knowledge of her husband as her. general agent by his acquiescence and participation in an alleged fraudulent issue of stock of which she acquires some shares through him, so that she has no standing in a court of equity to obtain relief from the other participants in the fraud.
    5. Corporations — injury to minority stockholders from delayed distribution of assets. Where rebates received by a corporation from a seller of goods are not. entered upon the books and are retained by an officer for the purpose of reducing the corporate Federal income tax, and the amount of the rebates are later distributed to stockholders in proportion to their holdings, held that minority stockholders who retained their share were not injured by the manner in which the rebates were received and distributed.
    6. Corporations — right of minority shareholder to complain of acts prior to acquisitions of stock. One who becomes a minority stockholder long after an officer and majority stockholder acquires with corporate funds an automobile for his personal use, held not entitled to complain.

      i. Corporations — right of majority stockholder to purchase goods from corporation at low price. An officer and majority stockholder who buys goods from the corporation at more than the cost price but less than the price charged the public, and who is billed the goods at the public price, held entitled to a rebate to accord with his contract price, as against the objection of a minority stockholder.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Oscar Hebel, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed October 4, 1927.
    David K. Tone, Charles S. Deneen and Boy Massena, for appellants.
    Bangs & Frankhattser, for appellees.
   Mr. Justice Wells

delivered the opinion of the court.

This was a bill filed October 18, 1922, by the appellees Otto Bilhuber and Emilie Bilhuber in which it is charged that in the year 1907 the complainant, Frank Wawak, Sr., and one Bose, organized the BilhuberBose Company, with a capital stock of $25,000, and that Frank Wawak, Sr., was made president and the complainant Otto Bilhuber, secretary; that during the year 1917 the said Wawaks, Senior and Junior, had acquired control of the stock of said corporation, and that for the purpose of minimizing the income payable to the United States Government and for the purpose of creating a fictitious deduction from said income tax, proposed to the said complainant Otto Bilhuber that they, as directors of said corporation, should vote larger salaries to the officers thereof, viz, the salary of the president to be fixed at $3,000 and the salaries of the secretary and treasurer at $8,000 each for said year, and that Otto Bilhuber, secretary, and the defendant Frank Wawak, Jr., would each accept the sum of $3,000 in cash as salaries for said year, and that the balance of their salaries so fixed, as well as the salary voted to the said Wawak, Sr., as president, should be paid in stock of the corporation, and that all of said stock so to be issued in payment or part payment of such salaries should be added together, and from the result thereof the said Wawak, Sr., should receive about one-half of the total, and your orator, Otto Bilhuber, .and the said Wawak, Jr., should receive about one-fourth each thereof, so that of the total so paid as salaries for the year 1917, the said Wawak, Sr., received and there was issued to him about $4,500 worth of stock, .and that, said Otto Bilhuber and Frank Wawak, Jr., did receive about $2,250 worth each thereof as salaries, as aforesaid; that the payment of said salary in stock unto the said Wawak, Sr., was entirely fraudulent and void as to said corporation, the stockholders and creditors., and the United States Government.

That during- the years 1918, 1919, .1920 and 1921 a procedure similar to that .practiced in 1917 was indulged in for various sums, allotted for salaries of the respective officers, Wawak, Sr., as president, never, however, receiving any cash payments as .for salaries, and Bilhuber, as secretary, and Wawak, Jr., as treasurer, receiving $3,000 in cash and the balance of their respective salaries in stock, the proportion of stock so issued being always maintained at 50 per cent for Wawak, Sr., and 25 per cent each as to Bilhuber and Wawak, Jr. .

That in the year 1918 the capital stock of said corporation was, by resolution of the board of directors and by proper proceedings, increased from $25,000 to $125,000, and stock dividends from said increase of capital stock were voted by the board of directors to be paid to the said Wawaks, Senior and Junior, and to said complainant Otto in proportion to their stock holdings in said corporation prior to said increase of capital stock and that stock dividends were so apportioned ; that during the year 1920, by vote .of the board of directors, and by proper proceedings, the capital stock of said corporation was again increased from $125,000.to $500,000, the shares of said stock remaining at $100 each at par; that on May 29,1920, by resolution of the board of directors, a stock dividend of $75,000 was declared, the same to be apportioned between the said Wawaks, Senior and Junior, and said complainant Otto in proportion to their then respective holdings of the capital stock of said corporation, and that the said stock dividend was so divided among said parties, and stock of said corporation issued in accordance therewith.

That for the purpose of reducing the income tax payable to the United States Government during the years 1917 to 1921, inclusive, rebates paid to the said corporation from firms and corporations from which the defendant corporation purchased goods, notably from the Hockanum Mills Company, amounting to $4,418.91, were never entered upon the records of said defendant corporation as a rebate, and the amount was never reported to the United States Government in income tax returns, but that said amount was taken by the said Wawak, Jr., and placed in his private bank account, and your orator alleges that he is informed and believes, and therefore states the fact to be, that other and further rebates were so paid to said defendant corporation, were concealed from the United States Government and were so received by the said Frank Wawalc, Jr., and placed in his private banking account, and your orator states that he, as an officer of the said defendant corporation, during said years, in his individual capacity, does not know what disposition the said Frank Wawak, Jr., made of said funds, but your orator alleges that he is informed and believes, and therefore states the fact to be, that certain of said funds never found their way into the treasury of said defendant corporation but were diverted to the uses of said Wawaks, Junior and Senior.

That at the date of the filing of this bill of complaint (October 18,1922) the following named persons and individuals are all of the owners and holders of the capital stock of said defendant corporation and that they own and hold the number of shares set opposite their respective names, viz, of the shares of common stock, Frank Wawak, Sr., 1035 shares; Frank Wawak, Jr., 941% shares; Otto Bilhuber, 549 shares; Mrs. Frank Wawak, Sr., 637% shares; Emilie Bilhuber, 337 shares; and of the preferred stock,. Oscar EL Solum, 50 shares, and Mrs. Frank Wawak, Sr., 75 shares; that the shares of common stock standing in the name of Mrs. Frank Wawak, Sr., and of Emilie Bilhuber, your oratrix, were shares deducted from stock purchased by or allotted to said Wawak, Sr., and to your orator; that the shares of preferred stock standing in the name of Mrs. Frank Wawak, Sr., were acquired by means unknown to your orator by the said Frank Wawak, Sr., but caused to be placed in the name of Mrs. Frank Wawak, Sr., who is the wife of the defendant, Frank Wawak, Sr.

That in the year 1918 the said Wawak, Sr., without authorization of the board of directors purchased an automobile at a cost of $2,715, and caused the same to be paid for out of the funds of the said corporation, and that said automobile was not purchased for said corporation, and that it was never used in the conduct of the business of said corporation, but that the said Wawaks, Senior and Junior, caused the same to be turned over to the possession o’f the said Wawak, Sr., and that from the time of the purchase of the same down to the present date, the said automobile has been in the possession of and used solely by said Wawak, Sr., for his own personal use and for the benefit of his own private business as a tailor, and not in any respect for the use of the said defendant corporation, and that the said defendant corporation has never had any benefit therefrom but that the cost of said machine was charged upon the books of said corporation as an expense of the said corporation.

That during the periods of time from August 14 to December 31,1919, and from January 1 to September 1, 1920, the said Wawak, Sr., purchased from the said defendant corporation large consignments of woolen goods used by him in the conduct of his private business as a tailor; that same were charged and invoiced to the said Frank Wawak, Sr., and his partner, at the usual trade price therefor, usually charged to the general customers of said defendant corporation; that after the purchase of said goods, and taking advantage of his position as an officer, director and majority stockholder in said corporation, and conniving and conspiring with the said Wawak, Jr., for the purpose of absorbing the profits of said defendant corporation to the benefit of himself, the said Wawak, Sr., the said Wawaks, Senior and Junior, caused to be entered on the books of the said corporation a rebate on account of the said purchase of said goods between the said last-mentioned dates, in favor of the said Wawak, Sr., to the amount of $4,348.28, which credit or rebate was subsequently absorbed by the said Wawak, Sr., from the said defendant corporation either by the causing of stock issuance in capital stock of said defendant corporation therefor, or in credits on subsequent purchases of goods made by the said Wawak, Sr., which rebates or alloAvances in the sum of $4,348.28 Avere illegal and void and fraudulent as to said corporation, and as to the stockholders thereof, including your orator and oratrix.

Complaint Avas made in said bill of the action of the board of directors on March 7, 1922, of removing the complainant Otto from the position of secretary of said corporation.

And your oratrix, Emilie Bilhuber, in this bill alleges that she is now and has been since June 1, 1920., a stockholder in said defendant corporation; that she Avas informed shortly before the date of the bill of the acts and doings and conspiracies of the aforesaid Wawaks, Senior and Junior, herein complained of, and that she believes the facts herein alleged in regard thereto to be true, and therefore states them to be true; that she did not know anything of the acts or doings herein complained of either before or after she became a stockholder in said defendant corporation and until informed thereof, as aforesaid, shortly before the commencement of this suit.

The bill prays that an account may be taken of all transactions of said parties; that the respective rights of the complainants and the defendant corporation and the other defendants be ascertained; that the defendants may be decreed to deliver up unto said defendant corporation, to be canceled, what if any of the capital stock of said corporation that stands in their respective names as may be found to have been wrongfully or illegally issued to them, and that said defendants, Wawaks, Senior and Junior, be decreed to repay unto said corporation such rebates or moneys or things of value belonging to said corporation as may be found to have come into their possession and which have not been returned by them to it; that the complainants are ready and willing and hereby offer to return unto said defendant corporation for cancellation what if any stock of said corporation may be found to have been wrongfully or unlawfully issued to them, or either of them, and such rebates, moneys, or -things of value belonging to said corporation as may have come into their possession and as have not been returned by them or either of them, and that it may be ascertained what amount of stock in said defendant corporation was issued to said Frank Wawak, Sr. and Frank Wawak, Jr., and unto your orator in return for said notes held by said corporation, which said-notes-bear date December 29, 1920, and that it be decreed that said-notes are null and void, and that they be canceled and delivered up, and that it be decreed that said Wawaks, Senior and Junior, deliver up unto said corporatioii the stock found to have been received by them for which said notes were-given, and that said corporation cancel said stock, your orator being ready and willing and hereby offering to deliver up to said corporation, for cancellation, such of said stock as was issued to him and for which said note was given by him; that the acts and doings of the said directors of said company on March 7, 1922, are null and void (removal of the complainant as secretary); that your orator is still the secretary of said corporation and as such entitled to his salary as such secretary at $3,600 per year, from March 7,1922, and until his successor is elected and qualified; that the defendant Frank Wawak, Jr., may be enjoined and restrained from acting, or pretending to act as secretary of said corporation, and that a receiver be appointed to take charge of the conduct of the business of said corporation.

The record in this case is voluminous and the evidence has taken a wide range, but we cannot, in the view we take of the case, repress the conviction that much of what we have considered might safely have been omitted without at all affecting the result. Stripped of its verbiage and plumage, we find but little in it about which there is any just ground for controversy. The case is simply this: There are four complaints of wrongdoing made as against the defendants, counting the various voting of alleged excessive salaries and the payment of a part thereof by the issuing of stock as one illegal act. Second, that the rebates belonging to the defendant corporation from the Hockanum Mills Company, amounting to the sum of $4,418.91, were wrongfully appropriated by the defendants Wawaks, Senior and Junior. Third, that in the year 1918 the defendants Wawaks, Senior and Junior, caused an automobile to be purchased for the sum of $2,715, and to be paid for with the funds of the corporation, and that the said automobile was intended for and used as the private property of Wa-Avak, Sr. Fourth, that Wawak, Sr., who was in the tailoring business separate and distinct from his connection Avith the defendant corporation, purchased large amounts of merchandise from the defendant corporation and was accorded and allowed illegal and improper discounts on the purchase of said goods to the amount of $4,348.28. The answers of the defendants practically admit the allegations in regard to the voting of salaries, but deny that there was anything wrongful or illegal in regard thereto, that it was not for the purpose of defrauding the complainant Otto, and that the capital stock of the defendant corporation that was issued in pursuance of said course was issued to all the stockholders in the proportion of their holding of stock at the time, and that the complainant Otto received his proportion thereof; that as to the matter of the rebate of $4,418.91 received from the Hockanum Mills Company, the same was disbursed for the benefit of each of the then shareholders of said corporation; that said Otto Bilhuber and Emilie Bilhuber, his wife, each received their pro rata share thereof, and that none of these individual defendants received anything more than their proportionate share thereof.

That on March 7, 1922, at a meeting of the board of directors of the defendant corporation, the defendant Frank Wawak, Jr., was elected, secretary of said corporation, and that the failure to re-elect said Otto Bilhuber as secretary was occasioned by the misconduct of said Otto Bilhuber.

That on July 1, 1918, at a meeting of the directors of the defendant corporation, a resolution was passed, concurred in by the complainant Otto Bilhuber, which provided for the purchase of an automobile for said defendant corporation; that on July 27,1918, an automobile was purchased for said corporation for the sum of $2,715, and that said automobile AAras used for the defendant corporation in its business until December 6, 1920; that an December 6, 1920, said automobile was sold to Frank Wawak, Sr., for the sum of $825 in cash; that $825 was all that said automobile was reasonably worth at the time it was so purchased by Frank Wawak, Sr.; that said Otto Bilhuber was at all times familiar with all of the transactions in relation thereto and that he never made any complaint or protest against any of the said matters and things until after complainant attempted to sell his stock to the said defendant corporation and the individual defendants Frank Wáwak, Sr., and Frank Wawak, Jr.

That they deny that the defendant Frank Wawak, Sr., was given a rebate of $4,348.28, or any other sum, on account of goods purchased from the defendant corporation, and deny that any such rebate was given for the purpose of defrauding the United States Government out of its income tax, or for the purpose of defrauding a partner of Frank Wawak, Sr.

A decree was entered in said cause on March 15, 1926, and therein the court finds that the complainant Otto Bilhuber is not in court with clean hands and therefore is not entitled to any relief in a court of equity, and ordered that the cause be and the same is dismissed as to Otto Bilhuber for want of equity, and retained as to said complainant Emilie Bilhuber; that since June 1, 1920, the defendants Frank Wawak, Sr., and Frank Wawak, Jr., have unlawfully and illegally appropriated to their own use moneys and property rightfully belonging to the defendant Bilhuber-Wawalc Company, the exact amount of which must be ascertained through an accounting; that illegal, unlawful and fictitious salaries were voted by the said defendants, Frank Wawak, Sr., and Frank Wawak, Jr., to themselves since the 1st day of June, 1920, while they were acting as members of the board of directors and officers of said corporation, and were paid to the said Frank Wawak, Sr., and Frank Wawak, Jr., out of the funds of said corporation, and which have not been accounted for by the said defendants, Frank Wawak, Sr., and Frank Wawak, Jr., and that the said defendants Frank Wawak, Sr., and Frank Wawak, Jr., since the said 1st day of June, 1920, have appropriated to their own use money belonging to the defendant coil poration through divers and sundry illegal devices, such as fictitious expense accounts, rebates, unlawful, illegal and excessive salaries, and that by such unlawful and illegal action the complainant Emilie Bilhuber has been defrauded; that the complainant Mrs. Emilie Bilhuber is entitled to an accounting in. accordance with the prayer of her bill of complaint from the defendants Frank Wawak, Sr., and Frank Wawak, Jr., for and. on behalf of the defendant Bilhuber-Wawak Company, from the- 1st of June, 1920, when she acquired her stock in said corporation, and that said cause is referred to a master in chancery to take an accounting and report his findings and conclusions.

From this decree the defendants Frank. Wawak, Sr., Frank Wawak, Jr., and the Bilhuber-Wawak Company prayed and were allowed an appeal to this court, and the complainant Otto Bilhuber has assigned cross-errors as to the decree against him.

From the allegations in the bill, and which are fully sustained by the evidence in the case, it is established that the original capitalization of the Bilhuber-Rose Company, subsequently changed to Bilhuber-Wawak Company, was $25,000; that this capitalization was subsequently, by proper proceedings, increased to $125,000, and subsequently, in the year 1920, increased to $500,000; that at all times from the organization of the corporation in 1907 until the development of this controversy in 1922, the complainant Otto Bilhuber was one of three directors in the corporation, the other two being Frank Wawak, "Sr., and Frank Wawak, Jr.; that Bilhuber ivas secretary of the corporation during that entire period and was the active, dominating manager of its business, and those three, Bilhuber and Wawalcs, Senior and Junior, from about 1917 were the only stockholders; that the several increases of the capital stock and the voting of the alleged excessive salaries to the officers were all concurred in by said Otto Bilhuber as stockholder and director, that he acquiesced in and received the benefit of the issuing of the shares of stock in the corporation in proportion to his holdings at the respective times; that if there was anything illegal, immoral or wrongful in such granting of salaries or the issuing of the stock in the manner provided for and in the manner in which it was issued, Bilhuber was equally guilty with the defendant Wawaks, and we concur in the finding of the chancellor that he as a complainant does not come into court with clean hands, and consequently is in no position to invoke the assistance of a court of chancery. It is a familiar rule of equity jurisprudence that a suitor must come into a court of equity with clean hands. We do not think that it requires any citation of authorities to sustain that proposition. We find nothing in the evidence that will justify the claim of Otto Bilhuber that there was any undue influence operating upon him by the Wawaks. On the contrary, we think the evidence in the case sustains the fact that Bilhuber was a business man of large experience, of a dominating character, and fully competent to do his own thinking.

As to the complainant Emilie Bilhuber, it appears that she became a stockholder in the defendant corporation about June 1, 1920, and according to the allegations of the bill, her shares of stock consisted of 337 shares of stock allotted to and deducted from the stock of her husband, Otto Bilhuber. There is no conT vincing evidence to be found in the case that she ever paid anything for the stock, and there was no way that this 337 shares of stock could" have existed but for the actions of the board of directors in increasing the capital stock in the manner set out in the bill of complaint and paid for as therein alleged. The original capital stock was but $25,000, of which her husband owned about 25 per cent, i. e., about 65 shares, and if the prayer of the bill was granted and this increase stock be recalled and canceled that would cancel all of her stock and she would have no basis upon which to predicate a claim. When the shares of stock were issued to Emilie Bilhuber there was not sufficient money in the “pot” (as it is denominated) to the credit of Otto Bilhuber on account of excessive salary to pay for the shares of stock issued on that date to himself and his wife. Bilhuber. gave his promissory note for $13,000, due one year after date, to the company in payment of the deficiency. This note was paid out of the salary voted to Otto Bilhuber and the other officers. The provisions for the payment of these alleged excessive salaries had been voted prior to the issuing of any stock to Emilie Bilhuber, and in December, 1920, the salaries of the officers having been reduced by reason of a decline in business, and a loss to the corporation having resulted, it left Otto Bilhuber and his wife, as represented by the stock issued in her name, indebted to the corporation in the amount of $8,916.65 on account of the stock issued in June, and on December 1,1920. Otto Bilhuber gave two promissory notes aggregating that sum in payment of this deficit and these notes are still unpaid. All these transactions, prior to any stock being placed in her name and subsequent thereto, were carried on by Otto Bilhuber acting as her agent. There is no evidence in the record indicating under what circumstances the stock was issued to Emilie Bilhuber, no evidence that she was present and requested it to be done, or received it from the corporation. The only inference to be drawn from all the evidence is that Otto Bilhuber caused this stock to be issued in her name" as part of the distribution of the stock in carrying out the scheme for the increasing of the capital stock of the company. There is no evidence in the record that she furnished any part of the consideration therefor. It does not appear from the record that the wife had any separate property or money or means of her own. On the contrary, there is evidence in the record that Otto Bilhuber was pressed for paying the ordinary living expenses of the family during the entire time of this transaction. But even if Emilie Bilhuber is to be regarded as the real purchaser and owner of the stock standing in her name, then it is perfectly manifest that her husband was her general agent in and about the entire transaction. The rule is that notice to an agent touching the subject matter of his agency or in regard to the transactions in which he is engaged, is notice to the principal. (Miller v. Whelan, 158 Ill. 544.) £< Neither can an assignee of stock maintain a suit in regard to transactions with the corporation done or assented to by his assignor. The purchaser of shares of stock acquires no greater rights than his vendor. He holds by the same title and subject to the same liability. Shares of stock are merely choses in action, and the successive owners acquire only the rights held by their predecessors in title.” (Babcock v. Farwell, 245 Ill. 14.)

As regards the item of the Hockanum Mills Company rebate, amounting to $4,418.91, the evidence discloses that this item of $4,418.91 accrued during the years 1917 to 1921, and that in 1921 the amount thereof was distributed to the stockholders in proportion to their holding of stock. Their share of this distribution was received by the complainants and retained by them, consequently no injury was done to them by the manner in which the rebate was received and distributed.

The transaction complained of in the bill of complaint in relation to the purchase of an automobile and the use thereof occurred in the year 1918, long before Mrs. Bilhuber became a stockholder, and the purchase was made by resolution of the board of directors at the time, and we do not consider that she has any right to complain thereof.

As regards the rebate to Frank Wawak, Sr., the evidence conclusively proves that probably as early as the year 1909 it was agreed, with the concurrence of the complainant Otto Bilhuber, that the defendant Wawak, Sr., in buying goods from the defendant corporation ivas to pay therefor cost price plus 10 per cent; that this arrangement and agreement had been in force and carried out from the time of its inception until Wawak, Sr., ceased business as a merchant tailor and ceased buying goods from the defendant corporation. We concur in the finding of the chancellor that there was nothing wrong or fraudulent in this transaction and that the defendant Wawak, Sr., was entitled to receive from the defendant corporation the accumulated discounts that had accrued by reason of these goods having been billed to him at the list price, he being entitled to an adjustment thereof between the billed price and the agreed price of cost plus 10 per cent.

In conclusion, we are of the opinion that the superior court, in its decree, properly ordered the cause to be dismissed as to the complainant Otto Bilhuber, but we are further of the opinion that the trial court erred in its decree in favor of the complainant Emilie Bilhuber, and the cause is therefore reversed with directions to the superior court to enter a decree dismissing the bill for want of equity as to both complainants.

jReversed and remanded with directions.

Barnes, P. J., and Gridley, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett 0’Commit and McSurely, JJ.,

license: Public Domain

text:
    Clair E. More, Appellant, v. Frank Fisher, Appellee.
    Gen. No. 31,660.
    1. Bailments — liow burden to disprove negligence east on bailee. Proof that a clothing cleaner has failed to return clothing places upon him the burden of proof that he was not guilty of negligence proximately contributing to the loss of the clothes.
    2. Bailments — leaving clothing in unguarded motor truck as negligence. The fact that a clothing cleaner left the clothes in an unguarded truck in a. Chicago street and that they were stolen shows negligence warranting recovery from him by the owner for the loss.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Theodore F. Bhler, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1927.
    Reversed with finding of facts and judgment here.
    Opinion filed October 10, 1927.
    Rehearing denied October 24, 1927.
    Btjlkley, More, Poynton &' Overmyer, for appellant.
    Steiner & Setecka, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment against him for costs entered upon the finding of the court.

The statement of claim alleged in substance that the defendant is engaged in the cleaning and dyeing business in. Chicago; that on or about May 20, 1925, defendant received two suits of clothes with two extra pairs of trousers from plaintiff for the purpose of cleaning and pressing; that the defendant failed to return the suits or the extra pairs of trousers to plaintiff or to pay for them although often requested so to. do,. to the damage of plaintiff in the sum of $130. There was no affidavit of merits, the cause being assigned to the small claims court.

The evidence is not conflicting and tends to show that plaintiff delivered the clothes to the defendant,.1 and that they were of the value of $100; that one Adolph Sviontelc, who worked for the defendant at the time in question, got the clothes from plaintiff’s apartment and took them to defendant’s place of business.; that in collecting and delivering goods he drove a Ford truck, and that in the latter part of June, after these clothes had been cleaned and pressed, Sviontek received them for redelivery to Mr. More; that these clothes were, with other clothing, placed in the truck for delivery; that Sviontek made various stops to pick up other clothes; that he stopped the truck at No. 999 Lake Shore Drive and went into an apartment to deliver a suit; that the truck had an ignition lock, steering wheel lock, rear door lock which is worked from, the inside by means of bolts, and a front door lock; that he locked the steering wheel and ignition lock and tried the rear door lock to see whether it was bolted, which it was; that he locked the front door lock, the front door separating the driver’s seat from the back of the truck in which the goods for delivery were carried ; that he had taken a suit of clothing into the building and was gone not more than five minutes; that on' his return, the truck with all of the clothing, including that of the plaintiff, had disappeared; that defendant recovered the truck about a week later in the 2800 block North Halsted Street, Chicago, but did not recover the clothes'; that when the truck was returned it appeared that the wheel lock had been opened and the front door lock damaged and opened; that he did not remember the make of the wheel lock.

The controlling question in this case is one of fáct: It must be conceded as a matter of law that plaintiff proved a delivery of the clothing to defendant and the failure.pi the defendant to return thé.same. The burden of proof was thereby cast upon the defendant to show that he was not guilty of negligence proximately contributing to the loss of the clothes. That burden of proof, we hold, has not been met by the proof submitted in this case. On the contrary, we are inclined to agree with the third division of this court, as held in Erickson v. Graham & Daniel Co., 227 Ill. App. 390, that leaving a truck so being used unguarded in a public way for such length of time as here appears, in the city of Chicago, is, as a matter of fact, negligence.

As the cause was tried by the court and the evidence is uncontradicted, the judgment is reversed with a finding of facts and judgment here for the plaintiff in the sum of $100.

Reversed with finding of facts and judgment here.

0’Commit and McSurely, JJ.,

concur.

Finding of facts: We find as facts that plaintiff, Clair E. More, who is appellant in this court, delivered to Frank Fisher, defendant, who is appellee in this court, on or about May 20,1925, in the city of Chicago, wearing apparel of the value of $100, for the purpose of having the same cleaned and pressed; that defendant was at that time engaged in the business of cleaning and dyeing clothes in the city of Chicago; that through the negligence of the defendant, by its servant, the clothes in question were lost and stolen, and the defendant is therefore liable to plaintiff for the said sum of $100,


author: Mr. Presiding Justice Matchett

text:
    Charles W. Peters for use of R. W. Keenon, Appellee, v. Mary Margaret Brown and The Hartford Accident & Indemnity Company, Appellants.
    Gen. No. 31,811.
    1. Replevin — mitigating damages in action on bond by showing title in plaintiff in- replevin. In an action of debt on a replevin- bond, it may be shown in mitigation of damages that the title and right of possession to the goods replevied were in the plaintiff in the replevin suit.
    2. Replevin — inadmissibility of bill of sale, not legal notice to creditors, to show title in plaintiff in replevin in action on bond. A bill of sale, void as to creditors as not .complying with statute, cannot be admitted in an action on a replevin bond to show that plaintiff in replevin had title to goods at the time that, under claim of ownership through said bill of sale, she replevied them from one ivho had taken them on execution.
    3. Replevin — when return of “no property found’’’ does not show officer had no-title to goods. A return of “no property found” on a writ of execution after goods had been taken from an officer on replevin, is no proof that the officer had no title or right of possession.
    4. Replevin — value stated in affidavit and writ as not conclusive on surety in action on the bond. A surety, defending an action on a replevin bond, may show the true value of the goods replevied and is not estopped therefrom by the value stated in the affidavit for replevin nor in the writ issued therein.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Hosea W. Wells, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed October 10, 1927.
    Rehearing denied October 24, 1927.
    Deerbes, Buckingham & Baton, for Hartford Accident & Indemnity Co., appellant; Don Kenneth Jones and John O. C. Fitzgerald, of counsel.
    Edward L. England, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In this case the sheriff of Cook county, for the use of E. W. Keenon, a judgment creditor, sued Mary M. Brown and the Indemnity Company in an action in debt upon a bond given by said Mary M. Brown in a replevin suit brought by her in the superior court of Cook county. Under that writ the sheriff took certain goods and chattels from the possession of the bailiff of the municipal court and delivered the same to Mary M. Brown, defendant here and plaintiff in that suit.

Mary M. Brown did not prosecute her replevin suit with effect but permitted the same to be dismissed, and a writ of retorno habendo was awarded.

There was a plea of non est factum and a special plea alleging that the title to and right of possession of the goods and chattels were in Mary M. Brown, wherefore it was alleged damages for more than one cent should not be awrarded, and this was the defense relied upon. It was available in mitigation of damages. Stevison v. Earnest, 80 Ill. 513; Hanchett v. Gardner, 138 Ill. 571; Bierma for use of Chicago Laboratory Sanitarium v. Columbia Typewriter Co., 179 Ill. App. 69.

At the close of all the evidence the court instructed the jury to return a verdict for the plaintiff for the amount of the bond, $10,000, with damages of $6,267.37. Mary M. Brown defaulted, and the defense was presented by the Surety Company and this appeal is prosecuted by it.

The evidence disclosed that the bailiff levied on the goods in question by virtue of an execution in favor of Keenon and against the husband of Mary M. Brown. As tending to establish the defense, the defendant offered in evidence a bill of sale from Mr. Brown to his wife, executed prior to the date of judgment. It was acknowledged before a notary public and was properly excluded, we think, because it did not comply with the provisions of section 9, chapter 68 of the Illinois Statutes, Cahill’s St. ch. 68, If 9, and was therefore void as to creditors.

The defendant says that the execution which was returned by Egan as bailiff, “No property found,” conclusively establishes that Egan as bailiff had no title or right of possession and that it was error to give a peremptory instruction for that reason. The defendant cites Mulheisen v. Lane, 82 Ill. 117, to this point. The return on the writ, however, was made after the goods and chattels had been taken away from the bailiff by the replevin writ, as conclusively appears from the affidavit for replevin and the writ issued in pursuance thereof. The return simply shows that fact that the bailiff could not find property of the defendant on which to levy and satisfy the execution at the time it was returned. There is no merit in this contention.

The controlling question in the case is raised by the contention of the defendant that the court erred in excluding evidence tending to show the actual value of the property at the time it was taken upon the replevin writ. The testimony of Mrs. Brown and one Cunniff as witnesses was offered on this point and was excluded by the court. The plaintiff contends that the witnesses were not shown to be competent, but the evidence is against plaintiff on this point. However, it is contended that the defendants had no right to contradict the affidavit for replevin, which stated, “Said goods and chattels were of the value of $5,000.” .The plaintiff says that the defendants were (and the defendant that it was not) estopped to show by competent witnesses the actual value of the property to be other and different from that stated in the affidavit.

The cases cited and relied on indicate that the Appellate Courts of this State havé not been in entire accord upon this subject. In Moore v. Paul F. Beech Co., 221 Ill. App. 609, the Appellate Court for the third district held that the defendant there in an action on the bond had no right to prove that the property taken was not worth the amount stated in the affidavit, hut was bound by such statement; In Farson v. Gilbert, 85 Ill. App. 364, this court stated that it had sometimes been held by some authorities that a plaintiff in replevin who fixed the value of property by a statement in his affidavit for the writ was estopped from afterwards asserting a different value when sued upon his bond. This court there stated that there was no decision by the Supreme Court of the State upon the question, but cited Wells on Replevin, sections 453, 569 and' 660, as sustaining that view. This court further said that in its opinion such a rule would many times operate unreasonably; that such a statement of value is.usually made without a very nice attention to the real value of the property and merely as an estimate, and the court said:

“Upon careful consideration, we regard the better rule to be as stated in Gibbs v. Bartlett, 2 Watts & Serg. 29, viz: ‘It (the amount stated in the replevin affidavit) has ever been considered as prima facie, but not conclusive evidence. ’ ”

This decision was afterwards cited with approval by the Supreme Court of Illinois in Martin v. Hertz, 224 Ill. 84, where it was said:

“In an action on a replevin bond to recover the value of the property for a breach of the condition for a return thereof, the authorities are harmonious to the effect that the value of the property stated in the replevin writ and bond is at least prima facie evidence of value as against the sureties on the bond. * * * There being no evidence in the record to the contrary, this prima facie evidence of value becomes conclusive. ’ ’

In Cermak v. Cable Piano Co., 211 Ill. App. 219, the plaintiff' bailiff of the municipal court brought suit upon a replevin bond which had been given by the Piano Compány to secure a writ for a piano in possession of one James Moloney. The property was obtained on dhe writ, and the Piano Company thereafter failing to prosecute its suit, there was an order for writ of retorno habendo. In a suit upon the bond there was judgment for defendant, and upon appeal by the plaintiff to this court it was urged that there was no proof as to the value of the piano taken under the writ. The affidavit and the writ had been offered in evidence, and there had been other evidence received tending to contradict these. The opinion states:

“While, as urged, the statements contained in the affidavit are, under the authorities, to be regarded as at least prima facie proof of the value of the property in question (Farson v. Gilbert, 85 Ill. App. 364), we think that taken together with the other evidence in the case, this admission is sufficient to warrant our entering a judgment in the suit in favor of the plaintiff for the sum of $500, together with attorney’s fees, interest and costs.”

The opinion further states that it was urged that the affidavit filed in the replevin suit was conclusive upon-the question of value and that the court had erred in sustaining objections to certain evidence offered by defendant to show the real value of the piano; that an examination of the testimony disclosed the trial court did not rule out any evidence offered by the defendant as to the value of the property on the theory that the affidavit was conclusive as against the defendant; but that “The court did refuse to permit a witness who signed the affidavit in question to qualify or modify the statements made by the witness in his affidavit. In this ruling we think the court was correct. ’ ’

On principle we are not disposed to approve of a rule which would prevent the actual facts from béing disclosed in an action of this kind. Value is very often a mere matter of opinion. We see no good reason why the actual facts should not be permitted to be shown by competent testimony. The statement in Cermak v. Cable Piano Co., supra, to the effect that a witness who signed the affidavit in replevin may not qualify or modify the statements therein made when afterwards called as a witness, must be regarded as inadvertently made. See 23 R. C. L. § 57, p. 898; Maguire v. Pan-American Amusement Co., 205 Mass. 64.

We hold that the defendant Surety Company in this case was not concluded or estopped on the question of value by the statement of Mrs. Brown in her affidavit as to the value of the goods or by the value stated in the writ which issued.

For the error in refusing to admit the testimony of the witnesses Brown and Cunniff as to the value of the property the judgment will be reversed and the cause remanded for another trial.

jReversed and remanded.

O’Connor and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    Grace W. Loker, Administratrix of the Estate of Hazel Lizenby, Deceased, Defendant in Error, v. Bernard C. Lizenby, Plaintiff in Error.
    Gen. No. 31,618.
    1. Judgments — vacating dismissal at subsequent term. An order dismissing a- suit for want of proseeution cannot be vacated at a subsequent term and the ease reinstated.
    2. Judgments — right to correct decree after entry term. A decree may be corrected on motion, at a term after that in which it was entered, in matters of form or clerical error or misprision of the clerk.
    3. Judgments — necessity of minutes used as basis for change in decree, being preserved in the court record. Before an amendment or correction in a decree can be made, based on the minutes of the court, such minutes must be shown and preserved in the court record.
    4. Appearance — special appearance as not giving jurisdiction to enter otherwise invalid order. A court has no jurisdiction to vacate an order of dismissal of a suit, entered at a previous term, on the ground he has jurisdiction of the defendant because his attorney appeared solely to object to the court’s jurisdiction.

      Error by defendant to the Circuit Court of Cook county; the Hon. John R. Caverly, Judge, presiding. Heard in the first division, of this court for the first district at the March term, 1927.
    Reversed.
    Opinion filed October 10, 1927.
    Rehearing denied October 24, 1927.
    Ralph 0. Winkenwerder, for plaintiff in error.
    Gideon S. Thompson, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

By this writ of error the defendant questions the order of the chancellor entered at a subsequent term, vacating and setting aside an order dismissing the cause for want of prosecution, entered at a prior term of court.

The complainant, Hazel Lizenby, since deceased, filed a bill for separate maintenance, to which the defendant answered, denying the allegations of the bill. An order was entered for temporary alimony. On April 24, 1925; during the April term of the circuit court of Cook county, an order was entered giving leave to complainant to file her amended bill of complaint instanter, and a rule was entered upon defendant to plead, answer or demur within ten days thereafter. On the same day the amended bill was filed, containing the same allegations as the original bill for separate maintenance but adding a prayer for a decree of divorce. On May 7, 1925, which was during the April term of the court, an order was entered dismissing the cause for want of prosecution. At the subsequent term of the circuit court, which was the May ■ term, on May 22, 1925, a petition was filed by the solicitor for the complainant alleging that “by mistake and inadvertence, as appears from the personal minutes and notes of this Court, ’ ’ the cause was dismissed for want of prosecution, and asking for an order vacating, the order of dismissal and that the cause be reinstated. The record does not show that the defendant had any notice of this proceeding. The court thereupon on May 22, 1925, vacated the order of dismissal, reinstated the cause, defaulted the defendant for want of an answer to the amended bill, and set the cause for hearing for May 25. This order recited, among other things, that “it further appearing from the personal minutes and notes of this Court and from the petition of complainant’s solicitor filed herein, that by mistake and inadvertence this cause was, on the 7th day of May, 1925, dismissed for want of prosecution. ’ ’

After the expiration of the April term the court was without authority to enter the order vacating the order of dismissal. A case precisely in point is Gray v. Ames, 220 Ill. 251, where the court having jurisdiction of the persons of the parties and of the subject matter of the suit, entered an order dismissing the case. At a subsequent term the chancellor attempted to enter an order vacating the order of dismissal and reinstating the cause. The Supreme Court held that the chancellor clearly had no power to do this, following Tosetti Brewing Co. v. Koehler, 200 Ill. 369, where it was held that after the term had elapsed a decree may be corrected, on motion, in matters of form or mere clerical errors or misprision of the clerk, but the court was without power to change the decision or to set aside, vacate, modify, or annul the decree; that relief must be obtained by appeal or writ of error, if the error is apparent on the face of the record, and if not, by bill of review or bill to impeach the decree. It was held that this rule applied to a suit which has been dismissed by the pourt, and that the order attempting to reinstate it and the decree entered thereafter were null and void and without binding force and effect. It follows that the order of the chancellor of May 25 attempting to reinstate the cause and the subsequent decree were null and void.

Even if this were a suit at law, the record must show the basis upon which the amendment or correction is made, and if it appears to be from the minutes of the court, such minutes must be shown and preserved in the record. Hubbard v. People, 197 Ill. 15; Frew v. Danforth, 126 Ill. 242; McKay v. People, 145 Ill. App. 277.

It is argued that the defendant was represented by an attorney on the hearing of the case and that this gave the court jurisdiction of the defendant’s person. The record shows that when the case was heard a Mr.

‘ Stough, an attorney, appeared to object to the proceedings upon the ground that the court had no jurisdiction to set aside the order of dismissal. It was specifically stated by Mr. Stough that he did not enter his appearance, but was there simply to object to the jurisdiction of the court. Complainant’s counsel objected “to any intervention on the part of this attorney Stough,” which objection was substantially sustained. The objection was repeated, and Mr. Stough said, “The court has already told me to be quiet,” to which the court replied, ‘ ‘ Counsel understands that. ’ ’ There was no such appearance and participation upon the hearing on the merits as would give the court jurisdiction of the person of the defendant.

Subsequent to the entry of the decree herein, Hazel Lizenby, the complainant, died, and Grace W. Loker, administratrix of her estate, was substituted as com-' plainant in the circuit court..

The order of the circuit court of May 22, 1925, and the subsequent decree are null and void, and the decree is reversed.

Decree reversed.

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


text:
    Arthur R. Clark, Appellant, v. G. A. Ball-Bearing Manufacturing Company et al., Appellees.
    Gen. No. 31,636.
    1. ' Equity — necessity of exhausting legal remedy. Equity will not interfere to enforce a legal claim unless there is a judgment at law and an execution issued and returned unsatisfied.
    2. Fraudulent conveyances — creditors who can attack. Only creditors having claims when a fraudulent conveyance is alleged to have been made can ask that it be set aside.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Francis S. Wilson, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed October 10, 1927.
    Alexander H. Marshall, for appellant; Frank G> Marshall, of counsel.
    Alden, Latham & Young, for appellees; K. Y. MaoFarland, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from the order of the chancellor of the circuit court dismissing complainant’s amended bill for want of equity after sustaining a demurrer thereto. The appeal was first taken to the Supreme Court, which held there was no freehold involved and transferred the cause to this court. 323 Ill. 579.

Complainant’s amended bill alleged that in 1921 he sold certain property to the G. A. Ball-Bearing Manufacturing Company and Emil A. Schreiber, and also contracted to and did erect a building on this property, and that defendants were indebted to him because of these transactions; that part of his claim has been paid, leaving a balance due. In 1917, which was four years before complainant had the above transactions, Emil A. Schreiber owned another and different lot, upon which he erected a two-apartment building. .Complainant, was not in any way connected with.that transaction. In 1918 Schreiber and his wife conveyed this property to Schreiber’s mother, which conveyance was duly recorded some two years before complainant had the transactions with defendants in 1921. Complainant filed his bill in 1924.

The bill' does not allege that complainant has any judgment on account of his claim against the Ball-Bearing Manufacturing Company and Emil A. Schreiber ; he is merely a contract creditor. He alleges fraud in the conveyance of Schreiber and his wife to Schreiber ’s mother and asks that they be declared fraudulent and void, the property thereby conveyed sold, an accounting had of the sums due to complainant arising out of the transactions of 1921, that a receiver be appointed and all rents and profits therefrom be held by the receiver to abide the order of the chancellor.

Defendants asserted by their demurrer that complainant was not a judgment creditor of the Ball-Bearing Manufacturing Company or of Schreiber, and that no judgment had been rendered or execution issued and returned; further, that complainant had no lien of any kind or character upon the property described in the amended bill of complaint; that he was not a creditor of the Ball-Bearing Manufacturing Company or of Schreiber at the time of the conveyance of the land and premises described in the amended bill; and that said bill did not set forth a cause of action in equity. This demurrer was sustained and the amended bill dismissed.

It is the established rule that a mere creditor cannot come into a court of equity to enforce his legal demand. Chancery will not interfere until the plaintiff has obtained his judgment. In order to show that there is no adequate remedy at law, it must appear that there is a judgment at law, execution issued and returned unsatisfied. A claim which is clearly legal should be tried at law before a jury. To enforce the claim in chancery would deprive the debtor of a jury trial, to which, by the rules of common law, he is entitled. Cahill’s St. 1925, ch. 22, Ü 49; Detroit, Copper & Brass Rolling Mills v. Ledwidge, 162 Ill. 305; Austin v. Bruner, 169 Ill. 178; Ladd v. Judson, 174 Ill. 344; Hart v. Oliver, 296 Ill. 209; McKey v. McCoid, 298 Ill. 566; Press & Co. v. Fahy, 313 Ill. 262.

Complainant insists that there is a class of cases in which a creditor may maintain a bill in chancery for the satisfaction of his debt where he seeks to reach property or funds accessible only by the aid of a court of chancery, and that in such cases a judgment is not necessary. Miller v. Davidson, 8 Ill. 518; Moore v. Wood, 100 Ill. 451; Rice Co. v. McJohn, 244 Ill. 264. In such cases the debt had an equitable element, where a court of equity will adjudicate it, or there is property upon which a trust is imposed. These facts are not in the instant case. Here is simply an ordinary claim on a contract arising out of a transaction quite apart from the conveyances of the real estate which are sought to be set aside, and which claim arose several years after said conveyances had been made. There is no connection, equitable or otherwise between the two matters.

Furthermore, complainant was not.a creditor of the Ball-Bearing Manufacturing Company or of Schreiber at the time of the alleged fraudulent conveyances. It has been held only creditors having claims when the fraud is committed can avoid such conveyances. Chicago Daily News Co. v. Siegel, 212 Ill. 617; Bittinger v. Kasten, 111 Ill. 260; German-American Nat. Bank of Lincoln v. Martin, 277 Ill. 629.

We are in accord with what was said by Mr. Justice Mulkey in Shufeldt v. Boehm, 96 Ill. 560, at p. 564:

“By taking his (the debtor’s) property out of his hands before the claim is due, or before its justice has been established by a judgment, in many cases would be to deprive him of the means of payment, and even of the means of defending himself against a vexatious and oppressive suit. In other cases, to prevent ruin to his business pending such litigation, he would be forced into unconscionable compromises involving losses he would be unable to bear. Moreover, such a rule as that contended for would be a constant temptation to selfish and avaricious creditors to endeavor, by the institution of such suits, to obtain an unjust advantage over other creditors, and, by reason thereof, litigation would be greatly increased, to the detriment of business generally, and to the ruin of many honest, struggling debtors. Every consideration, therefore, of public policy demands a strict adherence to the rule which forbids the institution of such suits.”

The ruling of the chancellor upon the demurrer was proper and the judgment dismissing the amended bill for want of equity was right and is affirmed.

Affirmed.

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


author: Mr. Justice McSubely

text:
    Adolph Roth, Appellant, v. Bernard W. Snow, Bailiff of the Municipal Court of Chicago, Appellee.
    Gen. No. 31,730.
    1. Executions — losing lien by neglect to enforce. A judgment creditor who does not seek to enforce an execution or perverts it from its legitimate purpose may lose the benefit of his lien.
    2. Replevin — on whom is.bur den of proving priority of lien. The burden was upon the plaintiff in replevin to prove that the service of an execution was intentionally withheld, to support his contention that the lien had ceased when his chattel mortgage lien attached.
    3. Executions — token lien attaches on expiration of chattel mortgage. The lien of an execution in the hands of an officer attaches immediately to property upon the expiration by its own terms of a chattel mortgage thereon.
    4. Executions — on wliat property of defendant’s lien attaches. The lien of the judgment for which execution is in the hands of an officer attaches to all the property the debtor owns.
    "Appeal by plaintiff from the Circuit Court of Cook county; the Hon. John R. Caverly, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed October 10, 1927.
    Frank D. Shobe, for appellant.
    William S. Kleinman, for appellee.
   Mr. Justice McSubely

delivered the opinion of the court.

This is an appeal from a judgment for the defendant in a replevin proceeding tried by the court.

Plaintiff’s claim is based on a chattel mortgage, while defendant claims by virtue of an execution issued in the case of Vombrach v. Andrew Roth. Andrew Roth apparently was indebted to his brother, Adolph Roth, and gave a chattel mortgage dated May 27, 1921, to secure $2,000, maturing on or before three years after date. This was duly recorded August 4, 1921. Before the expiration of this mortgage a new mortgage was executed on April 30, 1923, to secure $3,500, due two years after date and duly recorded May 1, 1923. This mortgage by its terms expired April 30, 1925. March 12, 1925, Vombrach had a judgment against Andrew Roth, the mortgagor in the chattel mortgage, for $510.25, and execution was issued March 13 and given to the defendant, bailiff of the municipal court, on March 16, 1925. Defendant was served personally with a copy of this execution and within ten days from the date of service on him filed a schedule, claiming as exemptions only his necessary wearing apparel. This execution remained in the hands of the bailiff the usual 90 days and was returned June 10, 1925, not satisfied. On the same day an alias execution was issued by the clerk of the municipal court and on the same day delivered to the defendant bailiff for service. At this time the lien of plaintiff’s chattel mortgage had expired on April 30. On June 13, 1925, a new mortgage was executed from Andrew to Adolph Both to secure $3,500, due two years after date, which was recorded June 19,1925. August 12,1925, the bailiff levied upon the property under the alias execution given to him on June 10.

The trial court was of the opinion that, by virtue of the alias execution delivered to the defendant bailiff, dated June 10, its lien was prior to the lien of the chattel mortgage dated June 13 and recorded June 19, 1925.

Plaintiff seems to concede this as a general proposition, but says that his sole contention is that the evidence shows that the execution in question was delivered to the defendant bailiff with instructions to withhold the same, and, therefore, by virtue of said instructions, it did not become a lien on the property. Many- cases are cited to the effect that where a plaintiff shows an improper use of his execution or a perversion from its legitimate purposes, it ceases to be a lien. Ordinarily, the lien of an execution is designed •to'assist a plaintiff, and if it is shown that he is not seeking to enforce his lien, he is liable to lose the benefit of his execution. Sweetser v. Matson, 153 Ill. 568; Everingham v. National City Bank of Ottawa, 124 Ill. 527, and other such cases.

Defendant' admits this is the law, but replies that the proof fails to establish that the judgment creditor of Andrew Both, or his. attorneys, gave any instructions or did anything to indicate that the execution should be withheld when it was delivered to' the bailiff on June 10,

The only testimony tending to support plaintiff’s claim in this respect is the testimony of an attorney for the plaintiff of alleged admissions made to him by the attorneys for the judgment creditor. Examining the record in this respect, it does not rise to the dignity of proof. At most it seems to have been simply lawyers’ talk on the question of the priority of the claims of the respective parties. Mr. Wind, an attorney associated with Mr. Kleinman, who represented • the judgment creditor, denied categorically that the execution was withheld, but stated positively that the execution was placed in the hands of the-bailiff for service and that no instructions of any sort were given to the bailiff not to serve it; that this execution was placed in the bailiff’s hands in the regular way for the purpose' of havingjhe same served. In the cases cited by plaintiff the fact that the service of the execution was deliberately withheld was not controverted. In the instant case the attorneys for the judgment creditor deny that the execution in question took any other than the regular course. The burden was upon the plaintiff to prove that the service of the execution was intentionally withheld, and we are of the opinion that the proof failed in this respect.

As the personal property in question was released from the mortgaged lien on April 30, 1925, the property immediately became subject to the lien of the execution in the hands of the defendant bailiff on June 10. The lien of the judgment, for which execution was in the hands of the defendant bailiff, attached to all property which the debtor owned. Second Nat. Bank of Monmouth v. Gilbert, 174 Ill. 485.

Where the lien of a chattel mortgage has expired by its own terms, the lien of an execution by an officer immediately attaches. Blatchford v. Boyden, 122 Ill. 657.

■ .The case was tried somewhat informally and largely on the statments of attorneys in the case. On the record thus made, the finding of the trial court was correct, and the judgment is affirmed.

Affirmed.

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


author: Mr. Justice HcSurely

text:
    Carroll, Schendorf & Boenicke, Inc., Appellee, v. Esther Simons, Appellant.
    Gen. No. 31,748.
    1. Customs and usages — presumption of contract referring to custom. In the absence of specific agreement the law will presume that parties contract with reference to the general custom and usage of the business or profession involved.
    2. Brokers — rental• commission usage as governing in absence of agreement. Proof of a general custom of real estate brokers to charge a certain commission on unexpired terms of leases withdrawn from them may prevail in the absence of evidence of a specific agreement.
    3; Brokers — agreement as to commission not preventing increase. Evidence that a real estate broker agreed to charge a certain commission on leases, held not to prevent the broker from receiving a larger commission where the owner received statements from the broker for increased commission for over a year without objecting.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. A. W. Summers, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed October 10, 1927.
    Rehearing denied October 24, 1927.
    Edward N. Sherburne, for appellant.
    Henry M. Hagan, for appellee.
   Mr. Justice HcSurely

delivered the opinion of the court.

This is a suit of the fourth class brought by plaintiff, real estate brokers, to recover 3 per cent commission on the unexpired terms of certain leases, which it procured, of property belonging to defendant. Upon trial by the court it had a verdict for $214.87, from which defendant appeals.

Defendant purchased the property in March, 1925. Before this time the building had been managed and operated by plaintiff as agent for the prior owner. An oral contract with defendant for the continued management of the building was made, F. J. Rodgers representing plaintiff and B. F. J. Odell, an attorney, representing the defendant and her daughter, Fannie Simons.

The decisive question is whether plaintiff agreed, in the event defendant terminated plaintiff’s management, to claim no commissions on the existing leases and also none on leases thereafter procured by plaintiff.

October 28, 1926, defendant notified plaintiff by letter that its services were no longer required in handling the property.

Odell, testifying on behalf of defendant, says that he asked Rodgers whether there would be any charge made for leases procured by plaintiff in the event Mrs. Simons wanted to change the agency for any reason, to which Rodgers responded, “No, there will not.” This testimony is corroborated by Fannie Simons. Rodgers testified that he told them that in the event there was a change in management the plaintiff would make no charge for commissions on leases then in existence*. “The question of the leases then in existence was specifically tallied about,, but nothing was said about any new leases”; that nothing was said or discussed about unexpired leases except as to “those then in existence.” On these Rodgers agreed, acting for the plaintiff, to make no charge. Rodgers further testified that none of the leases mentioned in the statement of claim was in existence at the time defendant bought the building or at the time he had the conversation with Odell and Miss Simons; that all of such leases for which commission is claimed were new leases made by the plaintiff through its men.

The credibility of witnesses is peculiarly for the trial court to determine. It has opportunities which we have not for determining this. There is nothing inherently improbable about Rodgers ’ version of the conversation, namely, that the agreement to make no charge in the event of change of management applied only to the leases then in existence. If defendant’s attorney understood that no charge was to be made not only on existing leases but also on leases made in the future, it would have seemed the part of prudence to have this definitely stated in writing. We would not be justified upon the record in concluding that the finding of the court in this respect was contrary to the weight of the evidence.

In the absence of any specific agreement the law will presume that the parties contracted with reference to the general custom and usage. Green v. Ryan, 242 Ill. App. 466, and cases there cited; Cothran v. Ellis, 107 Ill. 413. This is a well-known rule. Plaintiff by an abundance of testimony proved that it was the custom among real estate brokers in Chicago, and had been for a great many years, to charge 3 per cent on the unexpired term of leases withdrawn from the broker’s management. It is reasonable to assume the existence of some custom in this respect; otherwise, a broker could be deprived of all compensation for his services by the simple act of changing the management of the property. As the evidence showed that there was no contract between the parties with reference to new leases procured by plaintiff in the event of the withdrawal from it of the management of the property, the custom in the real estate business here will obtain.

Complaint is made of the fact that, as Rodgers testified, plaintiff agreed to manage the building for two and a half per cent commission on leases but subsequently changed to 3 per cent, and that plaintiff is now claiming on the basis of 3 per cent. It appears that some time after the conversation between the parties Rodgers wrote a letter to defendant giving his reasons why the two and a half per cent charge was originally made and stating that the plaintiff would have to charge the full 3 per cent rate. That was the rate charged for over a year and statements based on the 3 per cent rate were sent to defendant, which she never questioned nor criticized in any way but accepted as correct.

No convincing reason appears for disturbing the judgment, and it is affirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    A. Rabits, Plaintiff in Error, v. Live Oak, Perry & Gulf Railroad Company et al., Defendants. The Atlantic Coast Line Railroad Company et al., Garnishees, Defendants in Error.
    Gen. No. 31,188.
    Appeal and error — judgment not final and reviewable. An order denying a motion to vacate an order discharging garnishees in an attachment in aid of a suit to recover for, nondelivery of goods, held not a final, reviewable judgment.
    Error by iilaintiff to the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1927.
    Writ dismissed.
    Opinion filed October 10, 1927.
    Mathias F. Pbrz and Henry L. Grab, for plaintiff in error.
    John Gibson Hale, for defendants in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the Live Oak, Perry & Gulf Railroad Company, a corporation, the Atlantic Coast Line, a corporation, and the Wabash Railway Company, a corporation, claiming $411 on account of household goods which he delivered for transportation, and alleging that the goods had never been delivered. On January 9 the bailiff served the summons on the Atlantic Coast Line and the Wabash Railway Company. On January 12 the Atlantic Coast Line filed a special appearance, asking that the service of summons on it be quashed for the reason that the per.son who was served by the bailiff was not its representative. On the same date the Wabash Railway Company entered its appearance and demanded a jury trial, and on March 16,1922, filed its affidavit of merits, denying liability. On May 8, 1924, plaintiff filed an affidavit for a writ of attachment in aid. The writ was issued and the Atlantic Coast Line Railroad Company, the Seaboard Air Line Railway Company, the Pullman Company, and the American Railway Express Company were named as garnishees. The writ was served on them on May 9, 1924. On May 16, 1924, the Atlantic Coast Line, garnishee, entered its special appearance and made a motion to quash the service of the writ in aid. On May 19 the American Railway Express Company, garnishee, entered its general appearance and on May 20 the Seaboard Air Line entered its special appearance for the purpose of quashing the service of the writ upon it. On May 21 the Pullman Company answered. On June 19 the American Railway Express Company as garnishee answered that it had in its hands $734 belonging to the defendant, the Live Oak, Perry & Gulf Railroad Company. On June 20 the Seaboard Air Line Company made its motion to quash the service of the writ upon it. The motion ivas entered and continued and on June 24 the motion was sustained and it was ordered that all of the garnishees be discharged.

Afterwards plaintiff upon notice moved the court to vacate this order. On July 15 the American Railway Express Company, one of the garnishees, filed what it designates its special appearance, whereby it denied the court had any jurisdiction over it. On July 16 the court denied plaintiff’s motion to vacate the order of June 24 discharging the garnishees. On September 26, 1924, an order was entered again overruling plaintiff’s motion of June 24, 1924, to vacate the order discharging the garnishees. The record shows that plaintiff excepted to this and prayed an appeal to this court, which was allowed upon filing an appeal bond in the sum of $100 within 30 days and a bill of exceptions within 60 days. Afterwards on June 22, 1926, the writ of error was sued out from this court.

Plaintiff has filed a brief in this court but none of the defendants has appeared. The record is somewhat confused as will appear from' the above statement. The American Railway Express Company on June 19 filed its answer admitting that it had $734 at the time the writ was served upon it and that the money belonged to the defendants, yet we have this same garnishee almost a month later, July 15, 1924, filing its special appearance and questioning the jurisdiction of the court over it. Just why the court discharged the American Railway Express Company as garnishee when it had admitted in its answer that it had in its possession money owing to one of the defendants, we are unable to understand. However, the merits of the case are not properly before us because there is no final judgment entered in the case. The attachment in aid was merely an adjunct to the main suit, and until there is a final judgment entered in the main suit there is nothing before us of a final nature that we can review. Firebaugh v. Hall, 63 Ill. 81. The writ of error is therefore dismissed.

Writ dismissed.

Matohett, P. J., and McSurely, J., concur.


author: Mr. Justice O’Cohhor Mr. Presiding Justice Matchett

text:
    C. A. Hansberry, Defendant in Error, v. Isaac H. Holaway, Plaintiff in Error.
    Gen. No. 31,601.
    1. Pleading — necessity of filing similiter to plea. It is not error to proceed with the trial of an action for broker’s commissions in the absence of the defendant without a similiter having been filed to the plea of the general issue.
    2. Fraud and deceit — brohei-’s loss of commissions by purchaser he secured buying the property through a dummy. A real estate broker has a cause of action for the amount of his commission against the purchaser he secures, where the purchaser refuses to go through with the deal although accepted by the, seller and shortly thereafter, for the purpose of defrauding the broker, purchases the property through a third person, fraudulently concealing from the seller that he, the purchaser secured by the broker, is the real purchaser and obtaining with or through the dummy the commission which was earned by the broker.
    Hatchett, P. J.. dissenting.
    Error by defendant to the Superior Court of Cook county; the Hon. Jacob Hopkins, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed October 10, 1927.
    Rehearing denied and opinion modified October 24, 1927.
    A. G. Digits, for plaintiff in error.
    Gorman, Schmidt & McGrath, for defendant in error.
   Mr. Justice O’Cohhor

delivered the opinion of the court.

Plaintiff brought an action on the case against the defendant to recover $1,500 which he claimed he had earned as a real estate broker in selling a piece of real estate and out of which he had been defrauded by the defendant. Plaintiff filed his declaration on June 26, 1925, and the defendant on July 7, 1925, filed his plea of not guilty. On May 27, 1926, it appears from the record the cause was called for trial; that the plaintiff and his attorney appeared but that the defendant did not appear nor was he represented by counsel. The record then states: “And issues being joined it is ordered that a jury come, whereupon come the jurors of a jury of good and lawful men to-wit: * * * who being duly elected tried and sworn well and truly to try the issues joined herein and a true verdict render according to the evidence after hearing all of the evidence adduced say ‘We the jury find the defendant guilty and assess the plaintiff’s damages at the sum of fourteen hundred and ten dollars. ’ ” Judgment was entered upon this verdict. On July 17, 1926, the defendant entered its motion to vacate the judgment and it was continued to October 6, 1926, when the motion was overruled. Afterwards a writ of error was sued out from this court to reverse the judgment.

The defendant urges two points why the judgment should be reversed: (1) That the court erred in trying the case in the absence of the defendant without a similiter having been filed to its plea of the general issue; and (2) that the declaration does not state a cause of action.

1. In support of his contention that it was error to proceed with the trial of the case in the absence of the defendant without a similiter having been filed to the plea of the general issue, counsel cites the case of Stare v. Vayda, 234 Ill. App. 309. That was a personal injury cáse brought to recover damages for personal injuries. To the declaration the defendant filed the general issue. Afterwards the case came on for trial and neither the defendant nor his counsel appeared. The case was tried and there was a verdict and judgment in plaintiff’s favor for $5,500. The court held it was error to try the case in the absence of the defendant, there being no similiter to the plea of the general issue, and the judgment was reversed. We are unable to agree with the holding in that case. The authorities cited in that opinion in support of the conclusion there reached do not, we think, support the holding. While technically considered a similiter should' have been filed, yet it has long been held that the filing of a similiter to a plea of the general issue is a mere matter of form and certainly judgments ought not to be disturbed because some mere form has not been observed. In Hagen Paper Co. v. East St. Louis Pub. Co., 269 Ill. 535, the court said (p. 537): “The record and abstract are unsatisfactory and incomplete, and while no similiter to the plea of non assumpsit is to be found in the record, the judgment of the trial court recites that issues were joined and the cause heard by a jury. We must indulge the presumption that issue was joined, or that defendant, by proceeding to trial, waived the filing of the similiter to the general issue. However, the acceptance of issue, when well tendered, by adding a similiter, is considered a mere matter of form.” We think there was no error in proceeding with the trial, in the absence of the defendant without the filing of a similiter.

2. Does the declaration state a cause of action. We think it does. The substance of the allegations of the declaration is that plaintiff was a licensed real estate broker; that he was employed by Wolff Shafer, the owner of a certain piece of real estate in Chicago, to sell the property and that Shafer agreed to pay plaintiff for his services in obtaining a purchaser the sum of $1,500; that thereafter plaintiff submitted the property to the defendant as a prospective purchaser; that the defendant investigated the matter and agreed to buy it upon the terms submitted, and that afterwards Shafer accepted the defendant as a purchaser and was ready and willing to enter into a written contract for the sale of the property to the defendant, but that the defendant refused to go on with the deal; that a few months thereafter the defendant, through a third person, one Rosberg, fraudulently concealing from Shafer that he was in fact the purchaser rather than Rosberg to whom the transfer was made, bought the property; that the defendant before the transfer was made from Shafer to Rosberg, had Rosberg execute a conveyance of the property to the defendant; that the consideration for the property was paid by the defendant and that the defendant and Rosberg fraudulently received from Shafer the $1,500 commission.

From the foregoing it appears that plaintiff had rendered Shafer services for which he was entitled to receive $1,500; that the defendant for the purpose of defrauding plaintiff out of the $1,500 had a third person go to Shafer and buy the property for the defendant, concealing from Shafer that the defendant in reality was the purchaser of the property, and obtaining from Shafer the $1,500 which should have been paid to the plaintiff. These allegations tend to show that the defendant defrauded the plaintiff out of the $1,500, and the law is not so feeble as not to furnish plaintiff a remedy, on the contrary, the law “consulting the interests of morality” will compel the defendant in such circumstances to pay plaintiff the money he has wrongfully and fraudulently been deprived of. Chudnovski v. Eckels, 232 Ill. 312.

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

Affirmed.

McSurely, J., concurs.

Mr. Presiding Justice Matchett

dissenting: I do not think the declaration states a cause of action.


text:
    Mrs. R W. McKinnon for use of Commercial Union Assurance Company, Ltd., Appellant, v. Studebaker Sales Company of Chicago, Appellee.
    Gen. No. 31,655.
    1. Subrogation — necessity that subrogee plaintiff verify its pleading. In an action brought for the use of a subrogee, it is mandatory under section 18 of the Practice Act, Cahill’s St. eh. 110, f 18, that the subrogee allege, on oath, that it is the actual bona fide subrogee and set forth how and when it became such.
    2. Subrogation — necessity of alleging that subrogee insurance company paid owner for loss of chattel. In an action by the owner of an automobile to the use of a subrogee against an automobile company for failure to return a car it received to repair, in alleging that the subrogee insurance company paid the owner for the loss it is not necessary to allege the nature of the contract between the insurance company and the owner as a basis to determine whether the subrogee paid under legal necessity or merely as a volunteer, since the fact of payment is immaterial.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. William N. Gemmill, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed October 10, 1927.
    Kremer, Branand & Hamer, for appellant.
    Isaac B. Lipson, for appellee; Fred E. Newton, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action of assumpsit against the defendant to recover the value of an automobile which, it was alleged, plaintiff had delivered to the defendant for minor repairs and which the defendant refused and failed to return to her. A general demurrer was sustained to plaintiff’s amended declaration. Plaintiff elected to stand by the amended declaration, the suit was dismissed and this appeal follows, so that the question involved is: Did the amended declaration state a cause of action?

The amended declaration alleged in. substance that the defendant was the owner and proprietor of a certain automobile salesroom in Evanston, Illinois; that it held itself out to the general public as being ready and willing to repair and make minor adjustments on Studebaker automobiles purchased from it in consideration of the purchase and a reward; that Mrs. McKinnon, the plaintiff, purchased a Studebaker automobile from the defendant in May, 1926, for which she paid $1,400; that about June 9,1926, plaintiff delivered the automobile to the defendant at its place of business in Evanston for the purpose of having some minor adjustments made and for the further purpose of storing the same; that the defendant agreed to make such adjustments and to keep the automobile for plaintiff and that it would redeliver the same to her upon her request; that afterwards the defendant refused and it failed to deliver the automobile to plaintiff, and damages were laid in the sum of $2,000. There was a further allegation that Mrs. McKinnon was insured against loss on the automobile in the Commercial Union Assurance Company, Ltd., a corporation, the usee, for $1,300; that on August 25, 1926, the Assurance Company, the usee, paid to Mrs. McKinnon the $1,300; that she executed and delivered to the Assurance Company “proper articles of subrogation, assigning to said Commercial Union Assurance Co., Ltd., any and all right of action she might have to recover of and from the defendant.”

It is stated in the briefs that the court sustained the demurrer to the amended declaration, because the Commercial Union Assurance Company, Ltd., a corporation, the usee did not, in its pleading, on oath allege that it was the actual bona fide subrogee and set forth how and when it became such, as required by section 18 of the Practice Act, Cahill’s St. ch. 110, fí 18. And the defendant contends that the ruling of the trial court was right and should be affirmed because by section 18 it is mandatory, where a suit is brought by a subrogee, to set up in his pleading how and when he became such .subrogee, and verify the same. Counsel for the defendant point out that while under section 18 of the ..Practice Act the assignee of a chose in action, where suit is brought in the name of the assignor, need not verify his pleading, nor set forth how or when the assignee acquired title, as held by this court in R. C. McGill & Co. for use of Lewis-Simas-Jones Co. v. Peerbolte, 243 Ill. App. 616, but that there is a different provision where suit is brought by a subrogee; that section 18 provides that an assignee of a chose in action may sue thereon in his own name, while the provision in the same section in reference to a suit brought by a subrogee provides that the suit shall be brought either in the name of or for the use of the subrogee. .The provision of section 18 now under consideration was passed by the legislature in 1925 and is as follows:

■ “Any proceeding or suit at law or in equity hereafter brought under or by virtue of the subrogation provision or provisions of any contract or under or by any subrogation by operation of law shall be brought either in the name of, or for the use of the subrogee: Provided the subrogee shall in his pleading [on] oath, or by his affidavit, where pleading is not required, allege that he is the actual bona fide subrogee and set forth how and when he became the subrogee.”

Plaintiff, contends that the paragraph from section 18, just quoted, properly construed means that where an action is brought in.the name of the subrogee the .-plaintiff must, on. oath, allege in his pleading that he is the actual bona fide subrogee and how and when he became such, but that the provision does not apply where suit is in the name- of the original owner for the use of the subrogee. We are unable to agree with the contention of plaintiff. Where a statute is clear and unambiguous there is no room for construction. We think the provision of section 18 is clear and unambiguous. In the instant case the Assurance Company is seeking to recover by virtue of the subrogation provision of a contract entered into between it and Mrs. McKinnon, or by virtue of operation of law, or both, and the statute provides that in such case the suit shall be brought “in the name of or for the use of the subrogee,” provided that the subrogee shall in its pleading, on oath, allege that it is the actual bona fide subrogee, setting forth how and when it became such subrogee. This plaintiff failed to do and in this respect failed to comply with the plain provision of the statute. In these circumstances we think the demurrer was properly sustained. Whether the statute is wise or unwise is a question for the legislature and not for the courts.

The defendant further also contends that the amended declaration was further defective and the demurrer to it properly sustained because the averments failed to show the nature of the contract between Mrs. McKinnon and the Assurance Company, so that the court could determine whether the usee paid under legal necessity or merely as a volunteer. This contention cannot be sustained. The declaration having alleged the delivery of the automobile to the defendant under the circumstances and the defendant’s failure to return it, a cause of action was stated and it is no concern of defendant that Mrs. McKinnon has been paid by an Assurance Company. Vose v. Central Illinois Pub. Service Co., 286 Ill. 519; Byalos v. Matheson, 243 Ill. App. 60; Allen & Arnink Auto Renting Co. v. United Traction Co., 91 Misc. 531, 154 N. Y. S. 934.

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

Affirmed.

Hatchett, P. J., and McSurely, J., concur.


author: Mr. Justice O'Connor

text:
    Leon Jarusz, Appellee, v. Julius Namon, Appellant.
    Gen. No. 31,671.

      Brokers — right of unlicensed salesman for hrolcer to recover compensation from hrolcer. The right of a salesman for a real estate broker to recover compensation from the broker, based upon commissions received by the broker for an exchange effected by the salesman, is not affected by the fact that the salesman did not have a certificate of registration as a real estate salesman as required by statute.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. William E. Viner, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed October 10, 1927.
    John C. Lews and John T. Zuris, for appellant.
    William A. Either, for appellee.
   Mr. Justice O'Connor

delivered-the opinion of the court.

Plaintiff brought an action against the defendant to recover $325 claimed to be due him for services rendered by him as a real estate salesman for the defendant, who was a real estate broker. There was a trial before the court without a jury and a finding and judgment in favor of the ulaintiff for the amount of his claim.

The record discloses that the defendant was engaged in the real estate business in Chicago and was licensed under the statute of this State to conduct such business; that- he employed plaintiff as a salesman, who was not licensed under the statute; that plaintiff succeeded in having the owners of two pieces of real estate in Chicago enter into an agreement for the exchange of their respective properties, and that for such services defendant received $650 as a commission. There is further evidence to the effect that the contract between plaintiff and defendant was that where plaintiff succeeded in putting through a real estate deal for which the defendant was paid a commission, one-half of the commission should be paid to plaintiff by the defendant. There is some conflict in the evidence as to whether the exchange of real estate involved, and as a result of which the defendant received the $650, was brought about by plaintiff. Evidence on behalf of the plaintiff tended to show that his services resulted in earning the $650, while the evidence on behalf of the defandant was to the effect that the defendant had done practically all of the work and that the real estate transaction was consummated and the commission paid to the defendant as a result of the defendant’s efforts. The court accepted plaintiff’s version of the matter and entered judgment in his favor.

The defendant contends that the judgment is wrong and should be reversed because plaintiff, who was a real estate salesman, was engaged in that capacity without having a certificate of registration issued to him as the statute requires; that he was working in violation of the statute, and since the statute made it unlawful for a salesman to act as such in the real estate business, no recovery could be had in the instant case. We think that the law requiring a real estate salesman to obtain a certificate from the State authorities is not applicable here. Plaintiff here is not seeking to recover a commission, but to recover compensation from his employer which was paid by the owners of the property to the defendant. If plaintiff were bringing an action against the owners of the property to recover commissions, then the statute would apply; but that is not the situation we have before us.

Somewhat similar questions were involved in the cases of Gibons v. Williams, Monicer & Co., 191 Ill. App. 594; Gross v. Strauss, 208 Ill. App. 263, and Simon v. Bollei, 243 Ill. App. 629, in which cases it was held that a city ordinance requiring a real estate broker to be licensed did not apply where plaintiff, an employee of the defendant broker, was suing to recover his compensation, based upon the commission received by the broker.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Hatchett, P. J., and HcSurely, J., concur.