author: Mr. Justice Gridley

text:
    Edgar L. Perkins, Plaintiff in Error, v. Vincent P. Dole, Defendant in Error.
    Gen. No. 30,341.
    1. Corporations — certificates of stoclc in noncomplying foreign corporation tendered in action to recover purchase price from seller properly received in evidence although received in exchange for those originally purchased. Under Cahill’s St. ch. 32, ft 290, conditioning the right of the vendee of securities of a noncomplying corporation to recover the purchase price thereof from the seller upon a tender of the securities purchased, an objection to the reception in evidence of securities tendered in court in an action under that provision, upon the ground that some of them were certificates received in exchange for those originally purchased, was without merit.
    2. Corporations — liability to vendee of securities of noncomplying corporation of president thereof acting as agent in effecting sale. In an action against the president of a foreign corporation to recover the purchase price of securities of such corporation sold prior to compliance with the requirements of the Securities Act, a verdict was improperly directed for the defendant, although Laws 1921, p. 364, amending Laws 1919, sec. 37, Callaghan’s 1920 St. 2675(37), by extending the seller’s right of action to include the officers of such corporation, did not become effective until after the sale was made, where the evidence was sufficient to show that such president, in consummating the sale, acted as agent for the corporation within the meaning of the Act of 1919 prior to such amendment.

      3. Corporations — retroactive effect of amendment changing rules of evidence in action by vendee of stock of noncomplying corporation to recover purchase price of securities from selling agent. Laws 1921, p. 364, amending Laws 1919, see. 37, Callaghan’s 1920 St. jf 2675(37), governing the right of action by the vendee against the seller of stock of a noncomplying foreign corporation, by making the certificate of the Secretary of State prima facie evidence of the fact of noncompliance of such corporation with the provisions of the Securities Act, applies to a sale made prior to the effective date of such amendment, being merely a change in the rules of evidence and not affecting the substantive rights of the parties to the transaction.
    Error by plaintiff to the Superior Ctiurt of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed March 16, 1926.
    Joseph H. Hinshaw, for plaintiff in error; Wadsworth Watts, of counsel.
    Stansbury & Cloud, for defendant in error; Wendell Carnahan, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court. Plaintiff, by this writ of error, seeks to reverse a judgment for costs entered against him and in favor of defendant, after a directed verdict, by said superior court on December 19, 1924, in an . action of assumpsit, based upon the Illinois “Securities Law” of 1919, and particularly upon section 37 thereof. [Callaghan’s 1920 St. ¶ 2675 (37).]

Prior to the passage of the amendatory act, in force July 1, 1921, amending certain sections of that law, including section 37, plaintiff, at the earnest solicitation of defendant and one J. H. Hanson, acting as agents of the Indian Petroleum Company (hereinafter called the Company), a corporation organized under the laws of the State of Delaware, purchased from it 45 shares of its preferred stock, at par value, paying to the Company $4,500 therefor. He sought to recover back said sum, together with reasonable attorney’s fees, because, as alleged in his declaration in substance, the stock had not been qualified for sale in Hlinois. The stock was purchased in Illinois in November, 1920, and in the spring of 1921, at which times Dole and Hanson were the president and treasurer respectively of the Company and it maintained an office in Chicago. Plaintiff received from the Company three certificates for the 45 shares of preferred ¡stock, signed by Dole as president, and also received four certificates for certain shares of common stock, given as a bonus in consideration of his purchases of the preferred stock.

The suit was commenced on May 15, 1923, against Dole, Hanson and the Company. Dole and Hanson severally pleaded the general issue. Service was had on the Company by delivering a copy of the summons to Dole, as president. The Company filed a plea in abatement, and on the trial of the issues made by the plea, the suit was abated as to' it. It appeared on that trial, inter alia, that the Company had ceased doing business and had dissolved prior to the commencement of the suit. The propriety of the ruling of the court in abating it as to the Company is not questioned by the present writ of error.

On the trial of the issues as to defendants Dole and Hanson before a jury in December, 1924, plaintiff, in accordance with certain provisions of section 37 of the Act of 1919, tendered in court the seven certificates of stock and demanded the return of the $4,500, which he had paid therefor, and also demanded reasonable attorney’s fees. These certificates, evidencing the securities purchased, were offered and received in evidence. Objection was made to their admission on the ground that some of them were not the original certificates, but those which plaintiff had received in exchange for the originals. The objection was without merit. (Puntenney v. Wildeman & Co., 318 Ill. 139, 141.) Plaintiff, in accordance with the provisions of subsection 5 of section 37 of said Act, as amended by the Act of 1921 [Cahill’s St., ch. 32, ¶ [ 290, subd. (5)], then introduced in evidence, over objection, a certificate of the Secretary of State of Hlinois, under his hand and seal of State, dated December 4, 1924, wherein that official certified in substance that no statements or documents had ever been filed in his office, by or on behalf of said Indian Petroleum Company, giving the information as specified in the various subsections of section 9 of the Act of 1919 [Callaghan’s 1920 St., ¶ 2675(9)], or giving any information regarding said Company as required and specified in any of the sections of said Act of 1919, or the amendatory Act of 1921. Plaintiff also testified in his own behalf. Other witnesses called by him testified and considerable documentary evidence was introduced. Neither defendant introduced any evidence. At the conclusion of the trial the court instructed the jury to find the issues in favor of defendant, Dole, and at the same time instructed them, as to defendant Hanson, to find the issues in plaintiff’s favor and to assess plaintiff’s damages, as against Hanson, at $5,100, which included attorney’s fees. The judgment for costs, in favor of Dole and against plaintiff, followed. It is only this judgment that is questioned by the present writ of error. Plaintiff’s counsel here contends that the court erred in instructing the jury to return a verdict in favor of Dole, and that said judgment is contrary to the law and the evidence.

The evidence clearly shows that the Company, a Delaware corporation, was the “issuer” of the stock which it sold to plaintiff and that said sales to plaintiff were made in Illinois. In section 2 of the Act of 1919 (Laws 1919, p. 353) [Callaghan’s 1920 St., ¶ 2675(2)] it is provided that the word “issuer” as used in the Act “shall include every person and every company, trust, partnership or association, incorporated or unincorporated, heretofore or hereafter formed for any lawful purpose and organized under the laws of this State, or any foreign state or country, which shall have issued any security sold or offered for sale to any person or persons in this State.” And the stocks or securities, which were sold to plaintiff, were clearly of Class “D,” as classified in section 3 of said Act, viz.: “Securities based on prospective income.” (Laws 1919, p. 353.) [Callaghan’s St. 1920, ¶ 2675(3).] Plaintiff testified that about the time he made his first purchase of stock Dole told him. that the Company had recently been organized, that it “was going to be a wonderful company,” that it had a large acreage in Ofuska County, Oklahoma, that he (Dole) had looked over the property, and that if he (plaintiff) did not take stock in the Company to the limit of his capacity he would be making a mistake ; and that, in the spring of 1921, after he had made two purchases of stock but before he had made his last purchase, Dole told him that it had become necessary to increase the capitalization of the Company in order to provide more money for development purposes. Other testimony disclosed that at the times of plaintiff’s stock purchases the income of the Company was largely, if not entirely, derived from the sale of the Company’s stock.

In section 9 of said Act (Laws 1919, p. 356) it is provided: “No security in class ‘D’ shall be sold or offered for sale until there shall have been filed in the office of the Secretary of State statements and documents as follows”: Then is set forth in 16 subsections the documents and statements required to be filed. In section 36 of said Act (Laws 1919, p. 363) [Callaghan’s 1920 St., ¶ 2675(36) ] it is provided: “It shall be unlawful for any officer, director, solicitor, broker or agent, to sell or offer for sale any securities in Class ‘D,’ in any other manner or form than specifically set forth in the information required to be filed in section 9 of this Act, and any offer or sale upon any other terms or conditions other than set forth, shall be considered prima facie evidence that such officer, director, trustee, solicitor or agent offered or sold same for the purpose of defrauding the investor to whom such security was offered or sold.” No amendments to said sections 9 and 36 were made in the amendatory Act of 1921.

In section 37 of said Act of 1919 [Callaghan’s 1920 St., ¶ 2675(37)] it is provided: “Every sale and contract of sale made in violation of any of the provisions of this Act shall be void and the seller of the securities so sold, and each and every solicitor, agent or broker of or for such seller, who shall have knowingly performed any act or in any way furthered such sale, shall be jointly and severally liable, upon tender to the seller or in court of the securities sold, to the purchaser for the amount paid, together with his reasonable attorney’s fees in any action brought to recover such amount.” This section was amended by the amendatory act of 1921 by interpolating certain new clauses and by adding four new subsections (Laws 1921, p. 364). The old section 37, as changed, became subsection 1 of the new section 37. The changes were as follows: After the words “shall be void,” in the second line, the words “at the election of the purchaser” were added; after the words “and the seller of the securities so sold,” and before the words “and each and every solicitor, agent or broker of or for such seller,” the words “the officers and directors of the seller” were inserted; after the words “shall be jointly and severally liable” were added the words, “in an action at law or in equity.” Otherwise old section 37 remained substantially the same. The added subsection 2 of section 37 provides: “In any action, civil or criminal, where the seller or issuer relies for his defense upon any of the exemptions provided for in this Act, the burden of proof to establish such exemption shall be upon such issuer or seller.” The added subsection 5 of section 37 provides: “In any prosecution, action, suit or proceeding before any of the several courts of this State based upon or arising out of or under the provisions of this Act, a certificate under the seal of State, duly signed by the Secretary of State, showing compliance or non-compliance with the provisions of the Illinois Securities Law, respecting the securities in question or respecting compliance or non-compliance with the provisions of the Act by any issuer, solicitor, agent, broker, dealer or owner, shall constitute prima facie evidence of such compliance or of such non-compliance with the provisions of this Act, as the case may be, and shall be admissible in evidence in any action at law or in equity to enforce the provisions of this Act. ’ ’

It is evident from a reading of the bill of exceptions in the present record, as to the happenings in the trial court on the motion to direct a verdict in favor of defendant Dole, that the fact that the words “the officers and directors of the seller” were not contained in section 37 of the Act at the time plaintiff purchased the stock from the Company, had considerable weight with the court in causing him to direct such a verdict —Dole having been the president of the Company at the times of plaintiff’s purchases of the stock. But, after considering the evidence and the provisions of the Act, in force at the time of said purchases, we think it clear that the question of Dole’s liability to plaintiff was one for the jury to decide under proper instructions, and that the court erred in directing a verdict in Dole’s favor. The evidence sufficiently showed that Dole acted as the agent of the Company in his successful efforts to induce plaintiff to purchase stock in the Company, and as such agent, so acting, he became amenable to the provisions of the Act, in force at the times such purchases were consummated, The evidence also showed, prima facie, that the Company never complied with the provisions of section 9 of the Act by filing the required documents and statements with the Secretary of State, which filing was necessary before the company could become legally qualified to sell Class “D” securities in Illinois. Not having complied or attempted to comply with the law in this particular, neither the Company nor any one in its behalf had any right to sell, or attempt to sell, any of its securities, which were of that class. (Section 9, Act 1919; People v. Love, 310 Ill. 558, 562.)

It is here urged in substance by defendant’s counsel that the noncompliance of the Company with the provisions of the Act was not sufficiently shown, as it is only by virtue of subsection 5 of section 37, as amended in 1921 (after plaintiff’s purchases of the stock) that the certificate of the Secretary of State can be considered as affording prima facie evidence of such noncompliance. In our opinion, by the passage of subsections 2 and 5 of section 37, in 1921, after plaintiff’s purchases had been consummated, none of the pre-existing rights of the parties to the present controversy were affected. (Merlo v. Johnston City & Big Muddy Coal & Mining Co., 258 Ill. 328, 338.) These amendments to the original act of 1919 merely affected the remedy or law of procedure, which is always within the control of the legislature (Smith v. Bryan, 34 Ill. 364, 376); and they furnished rules of evidence pertaining to the remedy. “Where an act merely changes the remedy or the law of procedure, ‘all rights of action will be enforceable under the new procedure, without regard to whether they accrued before or after such change in the law.”’ (Winslow v. People, 117 Ill. 152, 158; Woods v. Soucy, 166 Ill. 407, 414.) “No party has any vested right in the rules of evidence, which pertain to the remedies provided by the State for its citizens, and a finding by an authority authorized to consider "a question of fact may be made prima facie evidence of the fact.” (Continental Beer Pump & Plumbing Co. v. Cooke Co., 299 Ill. 104, 110.)

Our conclusion is that the judgment of the superior court, against plaintiff and in favor of defendant, Vincent P. Dole, should be reversed and the cause remanded. It is so ordered.

Reversed and remanded.

Barnes, P. J., and Pitch, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A. Morris Krensky and Milton J. Krensky, trading as A. M. Krensky & Brother, Appellees, v. Harold P. Lynch, Appellant.
    Gen. No. 30,462.
    1. Brokers — sufficiency of evidence to show procuring of party ready, vñlling and able to make loan on stated conditions. Evidence in an action for commissions for negotiating a loan held to sustain a verdict for plaintiffs on the issue whether they procured a party ready, willing and able to make the loan on the conditions stated in defendant’s application.
    2. Brokers — sufficiency of evidence to show absence of demand by brokers for change in conditions of application for loan. Evidence in an action for commissions for negotiating a loan held to sustain a verdict for plaintiffs on the issue whether they demanded terms other than those stated in defendant’s application for the loan as a condition to making the same.
    3. Brokers — sufficiency of evidence to show unjust refusal of customer to complete loan after application therefor accepted. Evidence in an action for commissions for negotiating a loan held to sustain a verdict for plaintiffs on the issue whether defendant refused to take the loan after his application therefor had been accepted.
    4. Brokers — instructions in action for commission for negotiating loan held properly refused. Instructions in an action to recover commissions for negotiating a loan held properly refused because misleading and not correctly stating the law.
    5. Brokers — propriety of instruction in action for commissions for negotiating loan measuring damages by rate of commission stated in application for loan. An instruction, in an action for commissions for negotiating a loan, that the measure of plaintiffs’ recovery should be the rate of commission stated in the application for the loan, and that the fact, disclosed by the evidence, that plaintiffs were under agreement with the prospective lenders to divide such commission with them in the event the loan was made, was immaterial and should be disregarded, held, not error, although the loan was not made, the defendant having refused to complete the transaction.
    6. Brokers — sufficiency of evidence to support verdict for plaintiffs in action for commissions for negotiating loan. In an action to recover commissions for negotiating a loan, the nonconsummation of which was due to defendant’s refusal to complete the transaction, a verdict for the full amount of the commissions computed at the rate stated in the application for the loan was not excessive, although there was evidence that if the loan had been made plaintiffs were under obligation to divide the stated commission with the prospective lenders.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed March 16, 1926.
    I. B. Perlman, for appellant; Isidore Goodman and Avern B. Scolnik, of counsel.
    Levinson, Hoffman & Rein, for appellees; Theodore E. Rein, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On June 13, 1925, in an action in assumpsit, plaintiffs recovered a judgment for $3,000, after verdict, against defendant in said superior court for commissions for negotiating a loan of $50,000 on certain Chicago real estate, improved by an apartment building and owned by defendant, which loan defendant after-wards refused to accept. It is sought by this appeal to reverse the judgment.

On January 21, 1924, plaintiffs were engaged in the business, as brokers, in Chicago, of negotiating loans on real estate, and on that day, in their office, defendant signed a written application, wherein he authorized them to negotiate for him “a bond issue mortgage loan” for $50,000 on said property, for the period of 5 years at the interest rate of 6 per cent per annum, and agreed to pay them for so doing a commission of 6 per cent on the amount of the loan ($3,000), and usual expenses. It is stated in the application that “fire insurance in the amount of $50,-000 is to be placed by you (plaintiffs) during the pendency of the loan,” and that “this application, unless accepted by you within five days, Sundays and holidays excepted, shall become void.” Plaintiffs immediately negotiated with the firm of H. P. Kransz & Co., mortgage brokers in Chicago, in the endeavor to get it to make the loan, and on the following day, after viewing the property, etc., Kransz & Co. notified plaintiffs that they would loan to defendant the $50,-000 requested, and plaintiffs, within the five days, notified defendant in writing that they had accepted defendant’s application. Shortly thereafter defendant called at their office and an interview was had concerning the details of consummating the loan. Defendant testified that at this interview Milton J. Krensky demanded the placing of more insurance than the $50,000 mentioned in the application, and that as a result of this demand he, (defendant) shortly thereafter refused to take the loan and further negotiations with plaintiffs ceased. Said Krensky denied that any such demand was made. There was evidence tending to show that the firm of Kransz & Co. was at all times ready, willing and able to loan to defendant the $50,000 on the terms mentioned in the application.

On the questions whether plaintiffs procured a party who was ready, willing and able to loan $50,000 to defendant on the property according to the terms stated in Ms application, and did not demand of defendant other terms as to the amount of insurance, and whether defendant refused without just cause to take the loan after Ms application therefor had been accepted, we are of the opiMon that the verdict is amply sustained by the evidence.

Complaint is made that the court erred in refusing to give two certain instructions offered by defendant. They related to the question of plaintiffs’ alleged demand for more insurance than the amount mentioned in the application. They were misleading and did not correctly state the law and were properly refused.

Defendant’s counsel also contend that the verdict and judgment are excessive. This contention is based upon certain testimony, brought out upon cross-examination, of plaintiffs’ witnesses, Milton J. Krensky and Harry M. Kransz (a member of the firm of Kransz & Co.), to the effect that plaintiffs and the firm had agreed upon a certain division of the stipulated commissions of $3,000, in case said loan was made to defendant, wMch division was 4% per cent (or $2,375) to Kransz & Co., and 1% per cent (or $625) to plaintiffs. And in this connection defendant’s counsel also contend that the court erred in refusing to give a certain instruction offered by defendant, and in giving two other instructions offered by plaintiffs. The refused instruction is to the effect that if the jury find from the evidence that plaintiffs had agreed with the firm of Kransz & Co. to allow it a portion of the commission provided for in the application, and if the jury further find that plaintiffs are entitled to recover in the case, then, in any event, the verdict in plaintiffs’ favor “should not be for more than the sum of money which plaintiffs would themselves receive if said loan was consummated.” The given instructions are to the effect that, if the jury find the issues for plaintiffs, the measure of damages “is the rate of commission set forth in the application for the loan introduced in evidence,” and that the fact, that plaintiffs had an arrangement with said firm of Kransz & Co. to divide or share said commission, “is immaterial,” and the jury should disregard said arrangement, since it is not for them to consider what the plaintiffs would do with such commission after its receipt. In support of their contentions defendant’s counsel argue that, if the judgment for $3,000 is upheld and the amount paid, plaintiffs will obtain more money by reason of defendant’s breach of his contract in not accepting the loan than they would have obtained had no breach occurred and the loan had been consummated.

We are of the opinion that, under the facts and- circumstances in evidence, the verdict and judgment are not excessive, and that counsels’ further contention, that the court committed prejudicial error in the rulings on the instructions referred to, is without merit. Counsel have cited in support of their contentions certain cases, holding in substance that, in suits for damages for breach of a contract by a defendant, in determining the proper measure of damages, the cost of performance by the plaintiff should be deducted, where the necessity of such performance as well as the payment of such cost has been obviated by defendant’s breach. The cited case of Kilpatrick v. Inman, 46 Colo. 514, is illustrative of counsels’ conten-. tions. In that case, plaintiff, a liveryman, had agreed to furnish to defendant “a rig and driver for five days at $5.50 per day” to take her and party to a distant point, but she afterwards breached the contract and refused to take the rig and, for reasons of her own, secured one from another liveryman. Plaintiff sued and obtained judgment against her for $27.50, the full sum he would have been entitled to had he been allowed to perform his part of the contract and furnish the team. In reversing the judgment and remanding the cause the reviewing court held that the judgment was excessive, saying (p. 517): “The plaintiff, to have made the trip, would have been to the further expense of his driver, the expense of the return trip, together with the loss of the use of the team during the period of time so consumed, as well as the ordinary wear and tear to the outfit during this period. The result of this judgment is to award him his full contract price, allowing him the use of the outfit during the period it would have been gone, and the saving of the incidental expenses. In other words, a greater margin or profit by the alleged breach of the contract than he could have made had it been performed.” In another cited case — Finck v. Menke, 64 N. Y. Supp. 38 — it appears from the opinion that the plaintiff agreed to furnish the defendant a mortgage loan at a cost of $130, which was to cover all expenses, including lawyer’s fees as well as brokerage, that the defendant refused to accept the loan, and that a judgment was rendered against him for $130. The reviewing court reversed the judgment, holding that it was excessive, and saying (p. 39): “Where a breach of contract occurs, the aggrieved party is not always entitled, by way of damages, to the stipulated compensation. * * * It is obvious that this judgment is more than- the plaintiff could hope to receive if the entire transaction had been consummated. The estimated or. probable legal charges and the other expenses incidental to closing the loan, all of which were to be borne by the plaintiff, were evidently not considered in determining the extent of plaintiff’s damages.”

We do not think that these decisions, as well as other somewhat similar ones cited by counsel, are applicable to the facts of the present case, where it appears that plaintiffs fully performed the contract on their part, i. e., negotiated the loan, and procured a party (Kransz & Co.) who' was ready, willing and able to make the loan, in the amount and according to the terms mentioned in defendant’s application, and so notified defendant. In that application defendant agreed that if plaintiffs negotiated the loan he would pay them a commission of 6 per cent ($3,000) on the amount of the loan, and usual expenses. Plaintiffs were not to pay any expenses out of the amount of the stipulated commissions. As it seems to us, plaintiffs have earned these commissions. It was wholly because of defendant’s unwarranted act that the loan was not consummated.

In 3 Sutherland on Damages (4th Ed.), sec. 683, p. 2500, it is said: “When a broker has found a customer, for that for which his principal has employed him to find a customer, the broker has performed his duty and has earned his commission, or, as the proposition is usually stated, if the person produced by the broker is able, ready and willing to buy, sell or lend, as the case may be, the broker’s commission is earned.” And, as we read the decisions, this is the rule in this state. (Fox v. Ryan, 240 Ill. 391, 396; Telford v. Brinkerhoff, 45 Ill. App. 586, 587; Brillow v. Oziemkowski, 112 Ill. App. 165, 167; Masterson v. Knights, 135 Ill. App. 548, 549.) In 9 Corpus Juris, p. 523, sec. 23, it is said: “The measure of damages to which a broker is entitled in case the principal refuses or fails to comply with his contract with the broker is the amount of commissions the broker would have received if the transaction had been completed.”

In Thorne v. Barth, 114 N. Y. Supp. 900, it appears that plaintiff, a broker, had recovered a judgment in the trial court against defendant for commissions of $200; that the evidence disclosed that defendant had agreed to pay him that sum, as commissions, if he would secure a loan of $20,000 on defendant’s house. A somewhat similar contention to that urged in the present case was made on appeal, but the court held it to be without merit, saying (p. 900): “The agreement which the plaintiff claimed was made in this case was made with the plaintiff alone. His claim was that the defendant agreed to pay him a commission of 1 per cent ($200) if he should succeed in securing the loan for him. What the plaintiff was going to do with his commission after he got it, whether he was going to divide it with a third person, is of no concern of the defendant. The latter discharges his obligation when he pays the plaintiff. Whether a third person is entitled to half of it then'is solely a question between that third person and the plaintiff.”

In Carter v. Webster, 79 Ill. 435, plaintiff, a real estate broker, was employed by defendant to sell his land, or to procure an offer for it. Through his efforts, and those of other real estate brokers whom he interested in the proposition, plaintiff procured an offer for the land from a certain party, which offer defendant accepted. Plaintiff sued for his commissions and obtained judgment therefor against defendant. On appeal the judgment was affirmed, our Supreme Court saying (p. 436): “The effect of what plaintiff did was to present to defendant a person who made an offer for the property that he, was willing to and did accept. This was all plaintiff undertook to do, according to his theory of the case, or all he had to do to earn his commissions.” It appears from the opinion that the evidence disclosed that a local custom existed among the real estate agents, to the effect that, when a piece of property was placed in the hands of one agent, if he had no customer for it, said agent went to other agents to solicit buyers, and that if a sale was effected it was usual to divide commissions. Commenting upon this custom the court said (p. 436): “While the owner is not at all bound by such a custom, it is wholly immaterial to him what number of persons his own agent may employ to assist Trim in finding a purchaser for Ms property, or what he pays them for their services in the premises. ’ ’

Onr concMsion is that the judgment of the superior court should he affirmed, and it is so ordered.

Affirmed.

Barnes, P. J., and Fitch, J., concur.


author: Mr. Justice Gridley Mr. Justice Fitch

text:
    Guarantee Trust & Savings Bank of Chicago, Appellant, v. Mathilda Carlson and Mabelle A. Carlson, Appellees.
    Gen. No. 30,865.
    1. Injunctions — propriety of issuance without tonel to restrain enforcement of judgment. Cahill’s St. ch. 69, 9, does not authorize the issuance of an order enjoining enforcement of a judgment without the giving of a bond as required by paragraph 8 of that chapter, notwithstanding the order of the court recites that the giving of the bond is dispensed with “for good cause shown.”
    2. Injunctions' — sufficiency of petition to show ground for issuance to restrain enforcement of judgment. No ground is shown for the issuance of an injunction restraining enforcement of a judgment at law against petitioners based upon their notes by allegations that there is pending a suit by the judgment creditor to foreclose a trust deed securing such notes; and that petitioners have a good defense in equity against such notes in that they were obtained from them by fraud and circumvention, of which defenses the judgment creditor had notice, no facts being stated showing wherein the alleged fraud was practiced.
    Fitch, J., specially concurring.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Francis S. Wilson, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Reversed.
    Opinion filed March 16, 1926.
    Philip Gothberg and O. D. Olson, for appellant.
    David Swanson and John E. Erickson, for appellees; Frederick J. Bertram, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On February 28, 1925, the complainant bank filed its bill in said circuit court agáinst appellees and others to foreclose two trust deeds, securing two notes, for $8,000 and $4,000 respectively, signed by appellees. During the pendency of the foreclosure suit appellees, on November 18, 1925, filed a petition therein praying for an injunction, and on the following day, after notice, the court issued a temporary injunction, restraining the complainant bank, its agents, attorneys, etc., until further order, “from further prosecuting the suit at law and proceedings pending in the Municipal Court of Chicago, entitled and known as Guarantee Trust & Savings Bank of Chicago v. Mathilda Carlson cmd Mabelle A. Carlson, No. 1,405,-756; * * * from in any manner collecting, enforcing or attempting to collect or enforce the judgment rendered in said Municipal Court in said suit at law and proceedings; * * * from levying upon the real estate of the petitioners, * * * and from doing any act or thing in prosecution or in furtherance of said proceedings in said Municipal Court.” In the injunctional order it is stated that “for good cause shown, it is ordered that said injunction and restraining order issue without bond.” It is sought by this appeal to reverse the order.

In appellees’ petition, after reciting the filing by the bank of the bill to foreclose and the entry of their appearance in the cause and the pendency thereof, it is alleged in substance that the bank claims to be the owner of said two notes, which were executed by them; that, notwithstanding the bank had submitted itself to the jurisdiction of the circuit court and had prayed in its bill for the assistance of that court in the enforcement, by foreclosure proceedings, of its claim against petitioners (appellees), yet, subsequently, on October 29, 1925, it filed a suit at law, No. 1,405,756, in said municipal court against petitioners for the collection of said $4,000 note, and on October 30, 1925, procured a judgment for $4,610 to be entered by confession on said note against petitioners in said municipal court; that the bank is now threatening to proceed to enforce said judgment by levy upon petitioners’ real estate, and will do so unless restrained; that petitioners have in equity a good defense to said note, upon which judgment has been entered, and a good defense to the same in the present foreclosure proceedings; that said note, as well as the $8,000 note, was obtained from petitioners “by fraud and circumvention,” and petitioners “have received no consideration therefor”; that, as petitioners are informed and believe, both notes and the alleged trust deeds were deposited with the complainant bank “as collateral security upon a personal note or obligation of one David Miller, who obtained said alleged notes and trust deeds from petitioners by fraud and circumvention”; that petitioners are not informed as to the details of the transaction between said Miller and the bank, but they allege that the bank had notice or knowledge of facts which in law were notice to it of the said fraud of said Miller and of the want of consideration for the notes and of petitioners’ equitable defenses; that if the bank is entitled to any relief as to said notes it can obtain as full and complete relief in.the present foreclosure proceedings as it could obtain from the proceedings in the municipal court, and that, therefore, the bank will not be prejudiced by the granting of an injunction against it, which injunction should be issued without bond; that the said real estate sought to be foreclosed by the bill is the only real estate owned by petitioners and is their homestead; and that, unless an injunction issue as prayed, petitioners ’ rights will be greatly prejudiced and they will suffer irreparable injury, etc. The injunction granted was substantially the same as that prayed for.

We are of the opinion that the order for the injunction was improvidently and erroneously made, because petitioners were not required to give a bond to the bank in accordance with the provisions of section 8 of the Injunction Act (Cahill’s Stat. 1925, chap. 69, ¶ 8). The injunctional order restrains the bank “from in any manner collecting, enforcing, or attempting to collect or enforce the judgment” above mentioned, and “from doing any act or thing in prosecution or in furtherance of said proceedings in said Municipal Court.” It is provided in said section 8 of the Act that “before an injunction shall issue to enjoin a judgment, the complainant shall give bond to the plaintiff therein in double the amount of such judgment * * * conditioned for the payment of all moneys and costs due to the plaintiff in the judgment, and such damages as may be awarded against the complainant in case the injunction is dissolved.” It has frequently been held that it is error to issue an injunction enjoining the collection or enforcement of a judgment without requiring the moving party to give such a bond. (Packer v. Roberts, 44 Ill. App. 232, 233; Stirlen v. Neustadt, 50 Ill. App. 378, 380; American Fine Art Co. v. Voigt, 103 Ill. App. 659, 661; Grossman v. Davis, 117 Ill. App. 354, 356.) It is probable that the court ordered that the injuiietion in question “issue without bond,” because of the provisions of section 9 of the Injunction Act [Cahill’s St., ch. 69, [[9], but we do not understand that the provisions of that section apply where the injunction sought is one to enjoin a judgment. Furthermore, we do not think that appellees stated such a case in their petition as entitled them to the injunction as issued. A creditor by note and mortgage has several remedies, either or all of which he may pursue until his debt is satisfied; he may sue at law on the note and proceed to enforce the mortgage in equity, both at the same time, although, of course, he can have but one satisfaction. (Vansant v. Allmon, 23 Ill. 30, 33; Edgington v. Hefner, 81 Ill. 341, 342; Palmer v. Harris, 100 Ill. 276, 279.) Appellees charge in their petition that the $4,000 noté was obtained by “fraud and circumvention,” but no facts are stated showing wherein fraud was practiced.

For the reasons indicated the order of the circuit court is reversed.

Reversed.

Barnes, P. J., concurs.

Mr. Justice Fitch

specially concurring: I agree with the conclusion reached in the foregoing opinion, but not in what is said as to the necessity of giving a bond where, as here, the order recites that “for good cause shown” the injunction shall issue without bond. I think sections 8 and 9 of the Injunction Act must be read together, and that the proviso at the end of section 9 applies to all cases, whether mentioned in section 8 or section 9. In none of the cases cited was this question raised.


author: Mr. Justice Jett

text:
    Nicholas Kramer, Executor of the Estate of Lena A. Habel, Deceased, Appellant, v. John F. Habel, Appellee.
    Gen. No. 7,536.
    1. Witnesses — testimony of housekeeper of husband and his' deceased wife as rendering competent testimony by him in action by wife’s executor against him. The fact that one who served a husband and wife as housekeeper testified in behalf of the plaintiff in an action by the wife’s executor against the husband in respect of the alleged delivery oí certain personal property of the wife to the husband did not render the husband competent to- testify as to such matters, such housekeeper not being the agent of the wife within the meaning of Cahill’s St. ch. 51, f 2, subd. 2.
    2. Gifts — sufficiency of evidence to establish delivery. Evidence in a proceeding to disclose assets of the estate of a decedent held insufficient to show that there was ever a delivery to the defendant husband of certain articles of jewelry belonging to his wife so as to constitute an effective gift thereof.
    3. Gifts — burden of proof as to intent to give and delivery. The burden was upon a husband, claiming personal property which had belonged to his wife prior to her death by virtue of a gift thereof to him, to prove that there was an intention on her part to transfer the title and right of possession of the property to him and a delivery of the subject matter of the gift by which she parted with all control over it.
    Appeal by plaintiff from the Circuit Court of Lake county; the Hon. Claibe C. Edwabds, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed March 19, 1926.
    Albert L. Hall and Minard E. Hulse, for appellant.
    George W. Field, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This proceeding was originally commenced by a citation in the probate court of Lake county, issued against John F. Habel, the husband of Lena A. Habel, deceased, to disclose certain assets of the estate of said deceased which were claimed by the said John F. Habel.

Lena A. Habel died July 19, 1921, and during her lifetime she was the owner and possessor of certain jewelry, namely, a diamond butterfly pin of the value of $1,000, one pair of diamond earrings of the value of $3,000, one diamond solitaire ring of the value of $750, one cluster diamond ring of the value of $300 and one cluster ruby ring of the value of $15.

On the hearing in the probate court it was found that John F. Habel had in his possession the jewelry in question and it was ordered that he return the property to the executor from which order of the probate court John F. Habel appealed to the circuit court of said county. It appears that thereafter Nicholas Kramer, the executor of the last will and testament of Lena A. Habel, deceased, filed in the circuit court a suit in trover against John F. Habel, alleging the conversion by John F. Habel of the jewelry heretofore mentioned. On the trial in the circuit court the two cases were consolidated and the cause was. submitted to the court without the intervention of a jury with the result that a finding was entered that the jewelry in question was the property of John F. Habel and a judgment was rendered against plaintiff for costs, from which judgment order the executor prosecutes this appeal.

It is the contention of the appellee that this property was given to him by his wife. On the other hand the appellant insists that the testimony fails to show that there was a gift and delivery of the property in question. It appears that Lena A. Habel had owned this particular jewelry prior to the time of her marriage to John F. Habel and that it had been placed as collateral with John Sherwin, as security for a loan. The jewelry was returned to Mrs. Habel on June 15,1921, and was then sent by her to Chicago' for the purpose of having it cleaned, examined and appraised, and it was returned to her on July 8, 1921. The evidence tends to show that from that day until the time of her death, which occurred on July 19, 1921, the deceased had the jewelry with her every day, either in a bag which she carried with her about the house or by wearing some of it on her person, and this continued up until the day of her death.

The contention of appellee, if sustained at all, must be upon the testimony of the witness Sherwin, who testified that on or about June 15, 1921, Mrs. Habel said she was going to give the jewels to appellee because he had paid the interest and principal of the loan for which they were held as collateral, together with the testimony of Henry Schwery and William A. Dean, who it appears was the attorney of record for appellee until shortly before the trial of the case, both of whom testified that a few days before the death of Mrs. Habel she had stated to them that she had given the jewelry to appellee and that she wanted him to have it before she died and that she would not have been able to pay the interest or redeem the jewelry except for the defendant.

To give full weight and credit to the statements that the respective witnesses claim the deceased made relative to the giving of the jewelry to her husband, can it be said that the declarations are sufficient to constitute as a matter of fact a gift? In our opinion there is something more required than what is disclosed by the testimony of these witnesses in order to establish a gift; there must be a delivery of the articles that the donor has in mind. We do not think, after giving all the weight and credit possible to the testimony of these three witnesses relied upon by appellee, that they are sufficient to establish the fact that there was a delivery. The only evidence in this record that tends to prove a delivery is the testimony of John F. Habel, the appellee. Appellee was permitted to testify over the objection of appellant. It is contended by appellant that he was an incompetent witness. Appellee insisted that he was a competent witness and that he became a competent witness because of the fact that a Mrs. Grass, who testified on the part of appellant, was the agent of the deceased.

It appears that Mrs. Ida Grass was the housekeeper for Mr. and Mrs. Habel and for some two or three months prior to the death of Mrs. Habel she had been at their home daily. She testified during the progress of the trial relative to the jewelry how it was used and handled by the deceased and where it was kept when it was not being worn or cared for by the deceased. Mrs. Crass also testified that on the night of the death of Mrs. Habel inquiry was made by Mrs. Pauling, a sister of the deceased, as to where the diamonds were. Mrs. Hoecker, who according to the testimony lived in the flat above the Habéis, got the bag containing the jewelry and turned it over to Mrs. Pauling who delivered it to Mr. Habel. We are unable to say from anything disclosed by the record that Mrs. Crass was the agent of Mrs. Habel. She was simply the housekeeper and because of the fact she was a witness and testified on the part of appellant does not establish that she was the agent of Mrs. Habel, and for that reason appellee could be called as a witness.

There is no evidence in this record that establishes the fact of a delivery unless it can be gathered from the testimony of appellee himself. He clearly was an incompetent witness and being an incompetent witness his testimony cannot be considered in determining the question as to whether or not there was a gift and delivery of the jewelry in question. Considering all the facts to be true as testified by the witnesses who are competent to testify on the part of appellee relative to this gift still it falls far short of establishing the fact of a delivery.

The law requires a gift whether direct or in trust shall be established by clear proof and that no uncertainty shall exist either as to the subject or object of the gift. Barnum v. Reed, 136 Ill. 388-398.

Donatio mortis causa must be a completed and executed gift the same as in the case of a gift inter vivos. If the gift does not take effect as an executed and completed transfer to the donee, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only when made by a valid will. Barnum v. Reed, supra; Comer v. Comer, 120 Ill. 420; Cline v. Jones, 111 Ill. 563.

To constitute a valid gift inter vivos, possession and title must pass to and vest in the donee, irrevocably. In this respect, alone, a gift causa mortis differs from a gift inter vivos, as in the case of the former it is revocable on the recovery of the donor. Barnum v. Reed, supra.

A gift causa mortis may be defined as a gift of personal estate, made in prospect of death at no remote period, and which is dependent upon death occurring substantially as expected by the-donor, and that the same be not revoked before death. It must be accompanied by delivery. Lutterell v. Caldwell, 31 Ill. App. 30; Redfield on Wills, part 2, page 297.

The burden was upon appellee, who claimed the property as a gift from the deceased, of proving by evidence which was clear and not equivocal or uncertain, that there was such a gift. It was essential to prove that there was an intention on the part of the deceased to transfer the title and right of possession of the property to appellee and that there was a delivery of the subject matter of the gift by which she parted with all control over it. A verbal gift without a delivery transfers no title, and unless the donor divests herself of all dominion over the subject matter of the gift the title will not pass. Millard v. Millard, 221 Ill. 86-93.

We are therefore of the opinion appellee has failed to bring himself within the rule by establishing by clear and convincing proof a gift and a delivery of the property in question. For the reasons above stated the judgment of the circuit court of Lake county will be reversed and the cause remanded.

Reversed and remanded.


text:
    Harry Gordon, for use of J. P. Cirese, trading as Cirese Brothers & Company, Appellant, v. Great Lakes Fruit Company, Appellee.
    Gen. No. 7,587.
    1. Garnishment — admissibility of evidence to explain return of execution unsatisfied at instance of plaintiff’s attorney. Upon hearing of a motion to vacate a judgment against a garnishee, based upon the contention that the court was without jurisdiction to enter it, since the execution in the original suit was returned at the instance of plaintiff’s attorney, it was error to exclude plaintiff’s offer to show that the execution was returned nulla bona 270 days after issuance and only after fruitless efforts to locate property of the defendant with which to satisfy it, and that since the issuance of that execution others had been issued on different judgments and voluntarily returned unsatisfied by the sheriff.
    2. Garnishment — diligence to satisfy execution requisite as foundation for garnishment proceedings. A sheriff or a plaintiff in execution is only required to make a reasonable effort to find property out of which to satisfy an execution, before the execution may be returned, so that a judgment creditor may proceed to lay the foundation for a garnishment proceeding.
    3. Garnishment — conclusiveness of answer upon garnishee. A garnishee is in no position to complain of a judgment rendered against him in accordance with the admissions of his own answer.
    Appeal by plaintiff from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed March 19, 1926.
    Helen M. Cirese, for appellant; Joseeh A. Jadrich, of counsel.
    George W. Field, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This is a proceeding in garnishment. J. P. Cirese, doing business as Cirese Brothers & Company, obtained a judgment against Harry Gordon at the April term, 1923, of the circuit court of Lake county, for the sum of $361.51. Execution was issued upon the judgment and a levy was made upon certain stock that it was believed the said Harry Gordon owned in the Great Lakes Fruit Company. It was- ascertained, however, that the said Harry Gordon was not the owner of the stock and the levy was released; the execution was not returned within 90 days but was retained by the sheriff for a period of 270 days, at' which time the sheriff returned it at the suggestion of the attorney for the plaintiff showing an indorsement thereon that no property was found and no part satisfied.

On the day of the return of the execution an affidavit for writ of garnishment was made, and the writ was issued in favor of Harry Gordon for the use of J. P. Cirese, doing business as Cirese Brothers & Company, returnable to the March term, 1924. On the 3rd day of March, 1924, which was the first day of the term to which the writ was returnable, Theodore Goldsmith, president of the Great Lakes Fruit Company, appeared in court in person, offered no objection to the proceedings, and answered orally in response to the writ and informed the court that the Great Lakes Fruit Company, appellee herein, owed Harry Gordon $398.95.

On the same day an order was entered by the court, fin (bug that the court had jurisdiction of the subject matter, and that the cause had been submitted for trial without a jury, and the issues were found for the plaintiff, and that at the time of the service of the writ, there was due and owing Gordon, by the garnishee, the sum of $398.85. Judgment was accordingly entered for that sum. The order of the court was as follows: “It is ordered by the Court that the defendant Harry Gordon, for use of the plaintiff J. P. Cirese, doing business as Cirese Brothers and Company, do have and recover of and from the Great Lakes Fruit Cornpany the sum of $398.95, being the amount of the original judgment and interest and all costs accrued and that execution issue therefor.”

On the 25th day of April, 1924, the Great Lakes Fruit Company made a motion to set aside and vacate the judgment entered on March 3,1924. On November 24, 1924, a hearing was had on the motion to vacate the judgment and the same was denied, to which action of the court the Great Lakes Fruit Company excepted and prayed an appeal to the Appellate Court. Two days later, on November 26, 1924, the Great Lakes Fruit Company entered another motion to vacate the judgment of March 3, 1924, and to set aside the order entered on November 24, 1924. On April 25, 1925, the motion of November 26 came on for hearing, and the court held that inasmuch as the- execution in the original suit, upon which the garnishment proceeding was based, had been returned by the order of the plaintiff’s attorney, the court had no jurisdiction of the subject matter, and that it was the duty of the court to allow the motion of November 26, .and to strike the order of March 3, 1924, from the record, which was accordingly done and the said order of March 3, being the judgment, was vacated and the order of November 24, 1924, was stricken.

The appellant excepted to the ruling of the court and prosecuted this appeal. It will be seen that the court vacated the judgment for the reason that the execution was- returned at the suggestion of the attorney for the plaintiff in the original suit against Gordon. The question for decision on this branch of the case is whether or not the court was within the rule in holding that under the facts as disclosed by the record, appellant was not in a position, on account of having had the execution returned, by order of the plaintiff’s attorney, to make the affidavit which is the basis for the issuing of the garnishment writ.

The execution was issued on April 26, 1923, and a levy was made on certain shares of stock of the Great Lakes Fruit Company. It was subsequently discovered that the stock could not be reached, and the levy was accordingly released on the 31st of January, 1924. It is true the attorney for appellant requested the return of the execution. The sheriff could have, returned the execution without such request as. the statute provides that executions shall be made returnable 90 days after the date thereof. Had the plaintiff in the original suit requested the return of the execution before the expiration of 90 days, then a different question would be presented. Then the request would have been to do something that the sheriff was not obliged to do and it would not be his duty to do, as he would have to show some reason, by his return, for taking such action. We are familiar with the rule announced in Horrall v. Brassie, 158 Ill. App. 526, relied upon by appellee. The court there held that the execution returned by order of plaintiff’s attorney was not sufficient to base a garnishment upon. In that case, however, the facts are entirely different. No effort was made by the sheriff to demand any property or to make a levy, and the execution was returned 30 days after its issue. In the instant case the sheriff not only made a demand but made a levy, which was found afterwards to be erroneous. Upon the hearing of the motion to vacate the judgment appellant offered to prove that efforts had been made by the plaintiff and the sheriff to locate property out of which to satisfy the execution and that the judgment debtor had other judgments against him on which executions had been issued since the issuing of the execution in question and on which the sheriff had made return of “No property found, no part satisfied,” which was made voluntarily by the sheriff. The court refused to admit the offe red testimony and in so refusing the court erred. Chanute v. Martin, 25 Ill. 63-66.

A sheriff or a plaintiff in execution is only required to make a reasonable effort to find property out of which to satisfy an execution, before the execution may be returned, so that a judgment creditor may proceed to lay the foundation for a garnishment proceeding. Chanute v. Martin, supra.

Appellant should have been given an opportunity to show that the sheriff and judgment creditor had made a reasonable effort to find property out of which to satisfy the execution. If the appellant can show the facts he offered to prove then a reasonable effort had been made.

It has been held that a garnishee having once answered, he cannot complain afterwards if judgment was rendered against him based upon his own answer. Natywa v. Wachowski, 171 Ill. App. 457.

We are of the opinion that the action of the court in setting aside and vacating the judgment based alone on the fact that the execution had been returned by the sheriff, by order of plaintiff’s attorney nine months after it was issued, without giving appellant an opportunity to show the facts in relation to what if any effort had been made by the sheriff and judgment creditor to satisfy the execution was erroneous, and the judgment of the circuit court of Lake county is reversed and the cause remanded.

jReversed and remanded.


author: Mr. Justice Partlow

text:
    First National Bank of Stronghurst et al., Defendants in Error, v. Harry N. Vaughan et al., Plaintiffs in Error.
    Gen. No. 7,581.
    1. Foreclosure op mortgages — sufficiency of evidence to establish execution and validity of contract for additional security. Evidence in a suit to foreclose a second mortgage on certain farm property held sufficient to support a finding that a certain contract providing for the assignment to the mortgagee of a mortgage on other property of the mortgagor, to be held as collateral security for the payment of the entire indebtedness of the mortgagor to the mortgagee, was duly executed by the mortgagor and accepted by the mortgagee, and was a valid and binding agreement.
    2. Fobeclostjbe of mobtgages — sufficiency of evidence to impeach validity of recital as to amount of mortgage debt. Testimony by the mortgagor in a suit to foreclose the mortgage that the amount thereof was read to him as $9,000 at the time he signed it was insufficient to impeach the validity of the mortgage recital that it was for $12,235.75, where the mortgage had been of record during the year or more prior to the institution of the foreclosure proceedings, and the same amount was recited as the amount of the mortgage in a contract executed by the mortgagor on the same date, and a copy of such contract was in the possession of the mortgagor from the date of its execution.
    3. Evidence — requisite foundation proof for admission i/n evidence of ledger sheets of banh stating customer’s account. Proper foundation was laid for the introduction in evidence of ledger sheets of a bank showing the state of a customer’s account by testimony of the cashier that the accounts were prepared and kept under his supervision, and that the entries therein were made from the original deposit slips and checks on the morning following each transaction and in the usual course of business, and that the same were true and correct.
    Error by defendants to the Circuit Court of Henderson .county; the Hon. Willis F. Gbaham, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed March 19, 1926.
    Murphy & Kritzer and O’Harra, O’Harra & O’Harra, for plaintiffs in error.
    Hartzell & Werts, for defendants in error.
   Mr. Justice Partlow

delivered the opinion of the court.

The First National Bank of Stronghurst, Illinois, A. E. Jones, the Bank of Galesburg and May Hunter Morgan filed their amended bill in the circuit court of Henderson county against Harry N. Vaughan and wife, to foreclose a second mortgage on 234 acres of land, and to subject certain hotel property in Stronghurst to the lien of the mortgage. Cara D. Campbell filed a cross-bill to foreclose the first mortgage on the farm. Vaughan filed a cross-bill for an accounting of the financial transactions incident to both mortgages. The cause was referred to a master to take the evidence and report his conclusions. Objections to the report of the master were overruled and they were renewed as exceptions. The exceptions were overruled and a decree was entered dismissing the cross-bill filed by Vaughan, and granting the prayer of the amended bill, and of the cross-bill of Cara D. Campbell. To review the decree a writ of error has been prosecuted from this court.

The evidence shows that Vaughan was a farmer and stock breeder living with his family on the 234 acres of land in question, about three miles from the village of Stronghurst. In 1911, Vaughan commenced banking with the First National Bank of Stronghurst and continued until February, 1923, during which time he deposited $467,894.64. From 1912 to 1921 he was a director of the bank and was on its discount committee in 1915. He took part in the business of the bank in auditing its accounts and signing statements. In 1920, he erected a hotel in Stronghurst at a cost of about $30,000. W. C. Began sold Vaughan the furniture for the hotel which was to be paid for in cash on delivery. When the furniture was delivered Vaughan did not have the money to pay for it and it was necessary for him to put a mortgage' on the farm. Began suggested that he might be able to get the money for Vaughan, and Began went to Oklahoma to see his stepsister Cara D. Campbell, who agreed to< make the loan. The mortgage and note for $22,000 were prepared by B. GL Widney, the cashier of the First National Bank; for convenience they were made to the bank, and on the same day they were executed they were assigned to Cara D. Campbell. All of the facts with reference to this loan were known to Vaughan; he knew-the mortgage for $22,000 was a first lien upon the land, and was in fact the mortgage of Cara D. Campbell.

Vaughan was indebted to the Pioneer Lumber Company and to Edward Kelly for material and labor used in the erection of the hotel. In May, 1921, Vaughan gave to Kelly two notes each for $2,191.80, and two notes, each for $2,532.35, to the Pioneer Lumber Company. These notes were given under an arrangement with Widney that security should be procured therefor. Vaughan then went to Texas and while there it is claimed that Widney procured H. A. Adair and Ralph Painter to sign, and Roy W. Park, Ed Stine, H. B. Fort, G. Q. Fort, Tom Dobbs and Seigworth Brothers to indorse two notes, each for $4,500, bearing date May 14, 1921, and payable to the First National Bank, which notes were to be held as collateral security for the notes given by Vaughan to the Pioneer Lumber Company and Kelly. Vaughan claims he knew nothing of this arrangement by which these notes were to be held as collateral security, and that the makers of these notes were induced to sign them because they, together with Vaughan, were members of the Hereford Association, an organization of breeders and raisers of full-blooded Hereford cattle, and that the notes were executed at Widney’s request so that no steps would be taken to enforce a mechanic’s lien against the hotel property by the Pioneer Lumber Company and Kelly. The evidence shows that when Vaughan returned from the west he told the persons who had signed these two notes for $4,500 that he would give them a mortgage on the hotel property as security therefor. In accordance with this arrangement a- mortgage was given to Ralph Painter and GL Q. Fort, dated July 6, 1921, and acknowledged July 29, 1921, for $12,235.75. There is a dispute as to the amount of this mortgage. Vaughan claims it should have been for only $9,000, and was so read to him at the time he signed it, and. that he received no money on the mortgage, but it was simply given as security. At the same time the hotel mortgage was given, Vaughan gave to Painter and Fort a chattel mortgage for $33,500 on certain cattle and upon the furniture in the hotel. It is claimed that this chattel mortgage was given as security for the same indebtedness for which the hotel mortgage was given.

Vaughan executed six notes, payable to the First National Bank of Stronghurst, bearing date July 6, 1921, and secured by a second mortgage on the farm, which mortgage was acknowledged on July 29, 1921. These notes aggregated $24,253.75. One note for $1,000 was paid. A note for $917.80 was assigned to Mae Hunter Morgan. One note for $3,419.32 was. assigned to the Bank of Galesburg, one for $3,204.13 was assigned to A. E. Jones, and one for $2,305.95 was assigned to Tom Morgan in his lifetime but was held by the First National Bank as collateral security for a note which Morgan owed the bank, which note was never paid. The mortgage securing these notes is the one sought to be foreclosed in this case.

On the same date these mortgages were given, July 29, 1921, a contract, which is known in this record as exhibit 10, was executed. This contract recited that Vaughan was indebted to the bank in the sum of $24,-253.75, evidenced by six notes therein described; that to secure the notes Vaughan had executed to the bank a second mortgage on the 234 acres of land in question; that as additional and collateral security for this indebtedness Vaughan had executed to Painter and Fort his note for $33,500, which note was assigned without recourse to the bank which note was secured by a chattel mortgage on certain fixtures in the hotel and certain cattle; that as a further and additional collateral security, Vaughan had executed to Painter and Fort a note for $12,235.75, secured by a real estate mortgage on the hotel property; that the last two notes, with the mortgages securing them, were expressly executed for the purpose of being delivered and assigned to the bank, as additional and collateral security for the indebtedness due the bank; that when the indebtedness to the bank was fully paid, the notes and mortgages were to be surrendered to Vaughan and released, but if Vaughan did not pay the indebtedness to the bank then the two notes and mortgages were to remain in full force and effect as to the amount only of such portion of the indebtedness remaining unpaid; that the two collateral notes and mortgages were to stand as security for certain notes described as follows: two- notes each for $2,532.35 to the Pioneer Lumber Company; two notes each for $2,190.80 to Edward Kelly; that the collateral notes were first to stand as collateral security to the signers of two- notes dated May 14, 1921, each in the sum of $4,500, signed by Ralph Painter and H. A. Adair, said notes being indorsed by Roy W. Park, Ed Stine, G. Q. Fort, H. B. Fort, Tom Dodds and Seigworth Brothers, both of said notes being to the First National Bank; that subject to the above, the said collateral notes, and mortgages securing them, should stand as above provided as additional and collateral security for notes to the First National Bank. There is a controversy in the evidence as to whether this contract was signed by Vaughan, he claiming he never signed it.

It is claimed by Vaughan that in October, 1922, Vaughan, through Widney, collected a large amount of insurance on certain cattle which were burned, being the cattle covered by the chattel mortgage from Vaughan to Painter and Fort; that Widney paid the two Kelly notes and the two Pioneer Lumber Company notes out of this insurance money, and that the payment of these two notes discharged them; that this payment was made on October 16, 1922, as shown by the payments marked on the various notes; that part of this insurance money was also used for the payment of notes other than those described in exhibit 10, and that there was no credit given on the hotel mortgage although there was a credit on the chattel mortgage; that the balance of the insurance money, amounting to $6,562.23, was credited to Vaughan’s personal checking account by the bank. The hotel mortgage and note were assigned by Painter and Port to the First National Bank, and it is claimed by Vaughan that the mortgage was to be released when the Kelly and Pioneer Lumber Company notes were paid, that they were paid, that the mortgage should have been released, that it was not released, that the parties went to the county seat for the purpose of releasing the mortgage but did not do so.

The amended bill alleged the giving of six promissory notes by Vaughan to the First National Bank, the payment of one note and the assignment of one of said notes to each of the other complainants; that the mortgage was given by Vaughan on the 234 acres of land to secure the notes, which mortgage was subject to a prior mortgage given to the First National Bank and by it assigned tó Cara D. Campbell; that there was a default in the payment of interest on the notes secured by the second mortgage, and the principal thereupon became due; that the wife of Vaughan had inchoate right of dower in the farm and both had a homestead right. The bill also alleged the giving of the note of $12,235.75, by Vaughan to Ralph Painter and G. Q. Fort, secured by the mortgage on the hotel property; alleged an assignment of this note and mortgage to the First National Bank; that the hotel mortgage was giveh for the purpose of being assigned to' the First National Bank as additional and collateral security for the notes secured by the second mortgage on the farm. It alleged the execution of the contract known as exhibit 10, evidencing the collateral security of the hotel mortgage to the notes secured by the second mortgage on the farm. The prayer was that the second mortgage on the farm be foreclosed, and in case of a sale of the farm for an amount insufficient to pay the total amount due, that the property covered by the hotel mortgage be sold to satisfy any deficiency.

Vaughan and wife answered the amended bill; denied the execution of exhibit 10; alleged that there was nothing due the First National Bank; that Vaughan transacted business with the bank for a number of years, deposited large sums of money, sold the bank a number of promissory notes which should have been credited to his account but the bank failed to credit his account with the proceeds of the notes; that the bank, through its officers, drew checks against the account of Vaughan and depleted his deposit thereby, failed to keep' proper accounts; that the bank was largely indebted to Vaughan in excess of the amount which he owed the bank, and that on a statement of account the bank would be found to be indebted to Vaughan; that any notes given by Vaughan, as alleged in the bill, were without consideration; that the other complainants, if they held notes signed by Vaughan, took them subject to' the equities in favor of Vaughan against the bank; that Vaughan had no notice of such assignment until after the original bill had been filed.

Cara D. Campbell answered the original bill as amended, and alleged that she held a first mortgage upon the farm. She also filed an amended cross-bilj. which made new parties, and alleged the giving of a mortgage and note of $22,000 by Vaughan and wife to her which was a first lien upon the farm. It set up the second mortgage and prayed a foreclosure of the first mortgage.'

Vaughan and wife answered the cross-bill of Cara D. Campbell, alleging that if a note and mortgage were executed which were a first lien that they were given to the First National Bank, and that Cara D. Campbell took the note and mortgage subject to the equities in favor of Vaughan and wife against the bank; that on an accounting there would be found due to Vaughan from the bank a large sum in excess of the amount of the first and second mortgages.

Vaughan also filed a cross-bill in which he alleged that he had been a customer of the First National Bank and had great confidence in the bank and its officers; that he deposited more than $350,000 in the bank, and discounted notes, the proceeds of which should have gone to Ms credit; that the mortgages in question were for indebtedness growing out of the banking relations between Vaughan and the bank; that the bank was largely indebted to Vaughan, and that after deducting the amount of thé indebtedness as shown by the notes secured by the mortgages, there was still due Vaughan more than $30,000; that the books of the bank were not honestly and fairly kept. He prayed for an accounting between himself and the bank.

The First National Bank filed an answer to the cross-bill of Vaughan and admitted the banking transactions; alleged that during a part of the time Vaughan was a director of the bank; that he attended the directors meetings, and that the transactions with reference to the notes of Vaughan were regularly audited and passed upon by the board of directors; that Vaughan had complete knowledge and was a party to all of the transactions; that he caused Ms indebtedness to become a part of the assets of the bank and caused statements to be made eontaimng this indebtedness; that he used Ms office as a director in order to gain large credit; that he finally sold his stock in the bank and ceased to- be a director; that the mortgages were taken in settlement of the differences between the bank and Vaughan; that the various notes of Vaughan were taken and renewed from time to time; that he had the canceled notes wMch were renewed, and was estopped to claim that the mortgage was not a legal asset of the bank; that during the time he was a director, the bank had a system of bookkeeping by which monthly statements were furnished showing the amount of deposits and the amount of withdrawals by cheek, which statements were furnished to Vaughan monthly; that upon these statements was printed a request that if there were any mistakes, to call the attention of the bank to them at once; that these statements were acquiesced in by Vaughan; that at the request of Vaughan, the bank permitted three expert accountants to examine the books, and that they were ready to produce the books in court; that while a member of the board of directors, Vaughan voted for the legality of the loans which he had executed, and that he is estopped from claiming any fraud; that he was guilty of laches and was barred by the statute of limitations; denied that any notes were discounted which should have gone to his credit which were not credited; denied any indebtedness to Vaughan, and alleged the indebtedness of Vaughan to the bank to the full amount of the mortgage.

The decree found the facts as to the second mortgage as alleged in the amended bill, ordered Vaughan to pay the complainants in the original bill $27,969.43, which amount was subject to the first mortgage on the farm. Commissioners were appointed to set off the homestead as against the second mortgage. The decree further provided that if the land should not sell for enough to pay the amount due, then the hotel property be sold to satisfy the deficiency. A receiver was appointed for the farm, and the decree provided for a deficiency judgment against Vaughan in case the amount realized from the sale was not sufficient to pay the amount due on the second mortgage. The decree ordered Vaughan and wife to pay Cara D. Campbell $28,756.67, decreed a foreclosure, of the first mortgage- on the farm, and provided that in case of a deficiency judgment should be rendered against Vaughan for the same.

The first question for determination is whether or not Vaughan signed exhibit 10, He testified that he did not sign it. Widney testified that he saw Vaughan sign it. Four witnesses testified they knew the signature of Vaughan, had seen him write, and that the signature was his genuine signature. On the trial Vaughan produced an exact copy of this contract which was not signed by him but was signed by Widney. He testified he got this copy from his files in the hotel where he kept his papers, he did not know how it got there, and he had never read it. Under this evidence the chancellor was justified in finding that the exhibit was signed by Vaughan. It was not signed by the First National Bank but was signed by Widney as cashier. Vaughan claims there was no evidence showing that Widney had authority to sign it therefore it is not binding. The body of the exhibit shows that it was a contract between Vaughan and the First National Bank. It was accepted by the bank, was acted upon by it, and was therefore valid and binding on both parties. By its terms the note and mortgage for $12,-235.75 were executed for the express purpose of being assigned to the bank as additional security for all of the indebtedness to the bank. For this reason Vaughan was not entitled to have the hotel mortgage released upon the payment of the notes for $4,500. He was only entitled to have it released after all of the indebtedness to the bank was paid, which was never done.

Vaughan contends that the mortgage on the hotel should have been for only $9,000 instead of $12,235.75 and that it was so read to him at the time he signed it. The evidence on this point is in practically the same condition as the evidence with reference to exhibit 10. Both were executed on the same day. The mortgage was signed by Vaughan and his wife. Exhibit 10 recites that the mortgage was for $12,235.75. All Vaughan says is that it was read to him as $9,000. His wife, who also signed the mortgage, did not testify. The evidence on the other side is that both the mortgage and exhibit 10 specified the correct amount of $12,235.75. The evidence was not sufficient to impeach the validity of two written instruments, one of which had been upon record since August 18,1921, and a copy of the, other having been in the possession of Vaughan since the date upon which it was supposed to have been executed.

Vaughan offered in! evidence his pass book showing Ms deposits. He did not offer that part of the book showing the credits due the bank. The bank offered the ledger sheets showing Ms whole account of both debits and credits. It is insisted that the books of the bank were incompetent because they were not books of original entry and proper foundation was not laid for their admission; that several persons making entries therein did not testify to their correctness although some of them were within the jurisdiction of the court; that the original memorandum, deposit slips and cash book were not offered.

J. F. McMillan, an assistant casMer of the bank, testified that he had been employed in the bank continuously since 1901; that during all that time the books had been under Ms supervision; that exMbit 26 covered Vaughan’s account from April 1, 1917, to the time his account was closed; that it was made from the original deposit slips and checks on the morning following the transactions; that the books were balanced at the end of each day; that the entries were made in the usual course of business and were true and correct. There were only about two other witnesses who had worked on the book who were witMn the jurisdiction, and one of them was under quarantine and could not be present to testify.

Section 3 of the Evidence Statute [Cahill’s St. ch. 51, ¶ 3] specifies the Mnd of preliminary proof necessary to admit a book account in evidence. In re Martine’s Estate, 233 Ill. App. 94, it was held that an ordinary desk pad used for memoranda is not a book account. In Chisholm v. Beaman Mach. Co., 160 Ill. 101, and Bartolucci v. Dal Bianco, 228 Ill. App. 113, it was held that the fact that entries made in a book are copied from slips of paper does not render the book incompetent on the ground that it is not a book of original entry. Where the record is made in due course of business and according to methods proven accurate by many years’ test, it is competent. Pittsburg, C., C. & St. L. Ry. Co. v. City of Chicago, 242 Ill. 178; Chicago & N. W. Ry. Co. v. Ingersoll, 65 Ill. 399. Wigmore in his work on Evidence, after discussing cases within the exception, where it is impossible to produce the person who actually made the record says (vol. 3, 2nd Ed., sec. 1530): “The ordinary conditions of mercantile and industrial life in some offices do, in fact, constantly present just such a case of practical impossibility. Suppose an offer of books representing transactions during several months in a large establishment. In the first place the employees have, in many cases, changed, and the former ones cannot be found; in the next place, it cannot always be ascertained accurately which employee was concerned in each one of the transactions represented by the hundreds of entries; in the third place, even if they could be ascertained, the production of the scores of employees, to attend court and identify in tedious succession the detailed items of transactions would interrupt and derange the work of the establishment, and the evidence would be obtained at a cost practically prohibitory; and finally, the memory of such persons when; summoned would usually afford little real aid. If unavailability or impossibility is the general principle that controls, is not this a real case of unavailability? Having regard to the fact of mercantile and industrial life, it cannot be doubted that it is. In such case it should be sufficient if the books were verified on the stand by a supervising officer who knew them to be books of regular entries kept in that establishment.” In People v. Small, 319 Ill. 437, on page 476, this rule was cited with approval, and it was held that the cashier, whose function it is to oversee all transactions and test each through all its stages, is the person most competent to produce the books of a bank and vouch for their accuracy, and Cooke v. People, 231 Ill. 9, is cited [p. 478]. See also Wait v. Wenks, 186 Ill. App. 296. The books of the bank in question were established in accord with this rule and they were properly admitted in evidence.

The evidence, shows that the books of the bank were balanced each day and found to. be correct. Monthly statements were sent to the depositors showing the condition of the accounts. Vaughan admits getting some of these statements and he made no complaint. When his pass book was balanced, his canceled checks were returned to him with a request that he examine them for any errors but no errors were pointed out. For about nine years he was director, and at one time he' was on the discount committee. He had a better opportunity than the average customer to keep track of his account. When this suit arose, he was granted permission on three occasions to have expert accountants investigate his account. Only minor errors were discovered which have been corrected. He only points out four or five instances in which he claims he was not given credit. The evidence shows that in each of these he was in error. As we understand the contention of Vaughan it is not claimed that the books of the bank, if they are correct and were properly admitted in evidence, show that the amounts found by the decree as due upon the two mortgages are incorrect. His contention is that the books were not correct and were improperly admitted. We think that neither of these contentions is true.

It is claimed that the cross-bill of Gara D. Campbell was not germane to the original bill; that the residuary legatees of Thomas Morgan were necessary parties before a decree could be properly entered; that the affirmative defense set up in the answer of Vaughan required an amendment to the original hill and the cross-hill, which amendments were not made. Without going into detail with reference to- each of these contentions, we deem it sufficient to' say that we do not think there is any merit in any of them.

We find no reversible error and the decree will be. affirmed.

Decree affirmed.


author: Mr. Presiding Justice Niehaus

text:
    Stuckemeyer & Olson, for use of Mattoon Grocery Company, Appellee, v. A. H. Wyrick, Appellant.
    Gen. No. 7,843.
    1. Chattel mortgages — title to property purchased, at foreclosure sale where note omits reference to mortgage. In view of Cahill's St. eh. 95, f 27, no title to property sold under a chattel mortgage foreclosure sale was acquired by a purchaser thereat where the sale was had at the instance of an assignee of the mortgage and the note secured thereby, and such note did not on its face state that it was secured by the mortgage.
    2. Garnishment — property of judgment debtor sold, at void chattel mortgage foreclosure sale as subject to garnishment. Property sold under a chattel mortgage foreclosure had at the instance of an assignee of the mortgage and the- note thereby secured, where such note did not on its face recite that it was secured by the mortgage, must be regarded as assets of the mortgagor in the hands of the assignee of the mortgage who purchased the same at such sale, and as such subject to garnishment by creditors of the mortgagor.
    3. Garnishment — proof of value of assets of judgment debtor in hands of garnishee. Where on sale of property under foreclosure of‘a chattel mortgage for $400, the same was purchased by the assignee of the note and mortgage for $481, under circumstances such that he held the same subject to garnishment by other creditors- of the" mortgagor, the value of the property for purposes of the garnishment proceedings will he deemed, in the absence of other testimony, to have been at least the amount paid therefor at such sale.

      4. Gabhishment — right of garnishee to set off indebtedness of judgment debtor to him. The assignee of a note secured by a chattel mortgage who purchased the mortgaged property at a sale thereof on foreclosure of the mortgage, while chargeable as garnishee for the value of such property at the suit of other creditors of the mortgagor, was entitled to set off the amount of the mortgage debt, in view of Cahill’s St. ch. 62, 1f 13.
    Appeal by defendant from the Circuit Court of Shelby county; the Hon. F. R. Dove, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded with directions.
    Opinion filed March 8, 1926.
    J. C. Willard and Geo. B. Rhoads, for appellant.
    John McNutt, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This is a suit in attachment brought by the appellee, Mattoon Grocery Company, against Stuckemeyer & Olson, to recover a balance of $132.75, which was due the appellee for groceries sold and delivered. A personal judgment was rendered in the case against Stuckemeyer & Olson. The matter for review is a garnishment proceeding against the appellant, A. H. Wyrich. Judgment was rendered against appellant as garnishee in the circuit court of Shelby county for the full amount of appellee’s claim. This appeal is prosecuted from the judgment.

At the hearing in the court below, a stipulation was entered into by the parties concerning the facts upon which the judgment is based. It appears from this stipulation that Stuckemeyer & Olson were copartners in the conduct of a retail grocery business in Shelby-ville, and that on January 20, 1923, they executed a note for an indebtedness of $400, which was secured by chattel mortgage on their stock and fixtures, but the fact that the note was secured by a chattel mortgage was not stated upon the face of the note. It also appears from the stipulation that the note and chattel mortgage were afterwards assigned to the appellant, and that before the commencement of this suit, the appellant as assignee had foreclosed the mortgage, and by virtue of the mortgage foreclosure took possession of all the stock and fixtures of Stuckemeyer & Olson, and thereafter proceeded in accordance with the provisions of the mortgage to have a public sale of the property and chattels, and that the appellant became the purchaser thereof at the sale, for $481. Afterwards, he sold and disposed of the property and chattels to other parties. One of the questions presented for review on this appeal concerns the validity of the chattel mortgage under which the foreclosure sale was had, and under which the appellant claimed the right of foreclosure. It is well settled that the failure to indorse, on the face of the note, the fact that it is secured by a chattel mortgage, invalidates the chattel mortgage in the hands of an assignee, under section 26, ch. 93 of the Chattel Mortgage Act [Cahill’s St. ch. 95, ¶ 27]. Hogan v. Akin, 181 Ill. 448; Sellers v. Thomas, 185 Ill. 384; Schillo v. White, 207 Ill. App. 390. The chattel mortgage in question was void in the hands of the appellant as assignee, and therefore he had no legal right to foreclose the same, nor to' seize the stock and fixtures, nor to have them sold thereunder, and it follows, that he could not, and did not, legally acquire any title to the property and chattels by virtue of the foreclosure sale, and the seizure of the property and chattels, and the subsequent disposition of the same by him, though made in good faith, amounted in law to a conversion of the property and chattels taken, and the value of the property and chattels converted by him must therefore be regarded as assets in the hands of appellant for the benefit of the creditors of Stuckemeyer & Olson, and subject to garnishment. Concerning the question of the value of the property and chattels taken, there is only one matter which directly tends to show their value, namely, the amount which the appellant bid for the property and chattels, and the amount for which they were sold to him at the foreclosure sale, namely, $481, and it must be considered that the property and chattels were worth at least as much as they were sold for at the foreclosure sale. And when appellant was served as garnishee under the attachment writ, he therefore had in his hands the sum of $481 belonging to Stuckemeyer & Olson, and which they had the legal right to sue for and recover from him in assumpsit, and the creditors had the same right of recovery under garnishment statute. Commercial Nat. Bank v. Kirkwood, 172 Ill. 563. But under section 13 of the Garnishment Act, the appellant, who is also a creditor, with a demand against Stuckemeyer & Olson, had the right to deduct his demand from the $481 in his hands, and to retain the amount of his own demand. Section 13 [Cahill’s St. ch. 62, ¶ 13] expressly gives him this right. It provides: “Every garnishee shall be allowed to retain or deduct out of the property, effects or credits in his hands all demands against the plaintiff, and all demands against the defendant, of which he could have availed himself if he had not been summoned as garnishee, whether the same are at the time due or not, and whether by way of set-off on a trial, or by the set-off of judgments or executions between himself and the plaintiff and defendant severally, and he shall be liable for the balance only after all mutual demands between himself and plaintiff and defendant are adjusted, not including unliquidated damages for wrongs and injuries.” In this connection it should be pointed out that while the chattel mortgage was void as security for the note, the demand of the appellant represented» by the note, is so far as the stipulation discloses a valid claim and demand against Stuckemeyer & Olson. The validity of this note as a bona fide indebtedness of Stuckemeyer & Olson is not controverted. The appellant therefore had the right of set-off for his own demand, whether the same is due or not. Paisley v. Park Fireproof Storage Co., 222 Ill. App. 96; Obergfell v. Booth, 218 Ill. App. 492. There are no matters of fact set forth in the stipulation which deprive the appellant of his right to claim the set-off and deduction given him by the statute, nor estop him from asserting this statutory right.

For the reasons stated, we are of opinion that the judgment rendered herein was erroneous, and it is therefore reversed, and the cause is remanded with directions to enter a judgment against the appellant for the amount of the balance remaining in his hands after deducting from the sum of $481, the amount payable on the $400 note, which appellant holds against Stuckemeyer & Olson.

Reversed cmd remanded with direction,s.