author: Mr Justice Matchett

text:
    Frank Knass and Dina Knass, Appellees, v. Madison & Kedzie State Bank and Madison-Kedzie Trust & Savings Bank, Appellants.
    Gen. No. 36,033.

      Opinion filed March 6, 1933.
    Sims, Stransky, Brewer & Poust and Winston, Strawn & Shaw, for appellants; Franklin J. Stransky, Otto W. Berg, Harold Beacom and Harold A. Smith, of counsel.
    Shulman, Shulman & Abrams, for appellees.
   Mr Justice Matchett

delivered the opinion of the court.

This case is now before this court on rehearing granted. The appeal is by the Madison & Kedzie State Bank and the Madison-Kedzie Trust & Savings Bank, both banking corporations, from a decree in equity, by which both were held liable for a balance due upon an accounting between complainants and the Madison & Kedzie State Bank. The decree after granting equitable relief as prayed entered judgment against both banks and Will H. Wade, receiver of one of them, for $17,265.25, with interest. The cause Was heard upon exceptions to a master’s report. Exceptions of complainants were sustained, those of defendants overruled, and the decree entered accordingly.

The Madison & Kedzie State Bank was a corporation under the laws of Illinois engaged in the business of banking in Chicago prior to February 10, 1930. The Madison-Kedzie Trust & Savings Bank is an Illinois corporation which on February 10, 1930, under circumstances hereafter discussed, took over the banking business of the Madison & Kedzie State Bank and continued to carry on the same on the same premises. We shall hereafter in this opinion refer to the State Bank as the “old” bank and to the Trust & Savings Bank as the “new” bank.

The facts with reference to the controversy appear to be that on or about August 1, 1928, complainants (husband and wife) were customers of the “old” bank and upon solicitation by its representatives at different times purchased from it certain real estate “gold bonds” so-called. It was represented to complainants that the real estate securing these bonds was of a value of twice the face value of the bonds, and the preponderance of the evidence shows that it was agreed upon the part of the “old” bank in substance that it would repurchase these bonds at any time after one year from the sale at par less one per cent, plus accrued interest, and at the end of three and a half years at par.

The first transaction was on August 1, 1928, when complainants purchased $6,000 par value of these bonds, paying par and accrued interest therefor. A statement of the transaction made by the “old” bank has an indorsement thereon as to the agreement of the “old” bank to repurchase on these terms. Thereafter similar purchases were made and similar indorsements were included in the contracts. The agreement was made on behalf of the “old” bank by Mr. Gleason who was then its vice president. The purchase by complainants of these bonds upon such conditions aggregated a total of $100,000, — $60,000 of which in conformity with its agreement were repurchased by the “old” bank, leaving in the hands of complainants, bonds of the par value of $37,100 together with accrued interest.

Complainant, Frank Knass, put up $25,000 par value of these bonds as collateral to a note given by him to secure a loan to the “old” bank. After the business passed into the hands of the “new” bank, as hereafter described, the note was renewed by the “new” bank for the sum of $22,463.10. The note was dated May 10, 1930, was due June 9, 1930, and drew interest at the rate of 7 per cent per annum. Payments were from time to time made on this note leaving a balance due thereon of $22,189.14.

The decree describes in detail the bonds deposited as security to this note and the bonds which complainants purchased and finds that the appraisals of the property as made for the purpose of selling these bonds were false; that the “old” bank received large sums as commission out of the transactions, and that all of the bonds were about to default in interest at the time of sales; that this information was kept secret from complainants; that complainants relied on the false representations of the “old” bank in these respects and were damaged and defrauded thereby; that demands were made on both the “old” and the “new” banks to pay the bonds and cancel the indebtedness and the note, which requests were refused by both of them; that the “new” bank knew of the agreement between complainants and the “old” bank and had full knowledge of the conditions upon which the sales were made and the notes given.

The decree further found that upon tender of the bonds it was the duty of each of the banks to carry out the agreement made by the “old” bank and that the “new” bank by taking over the assets of the “old” bank became liable. The decree therefore directed “that the collateral note above described and set forth, be and is hereby declared cancelled, and said ‘new’ bank is hereby directed to surrender said note to the complainants, and that the said banks credit themselves with the sum of $22,189.14, which is deducted from the amount due to complainants in the sum of $39,454.39, and that complainants have and recover from Madison & Kedzie State Bank and Will H. Wade, its receiver, and Madison-Kedzie Trust and Savings Bank, the sum of $17,265.25, plus interest thereon at the legal rate from the date of said master’s report, and that an execution be issued against them in favor of the complainants for said amount.”

The “new” bank took over the property of the “old” bank pursuant to the terms of a written agreement made February 8, 1930, and executed in behalf of each of the banks by their respective presidents. The agreement is attested by P. A. Schroeder, cashier, who seems to have acted in that capacity for the “old” and the “new” banks.

The agreement in substance recites that unfavorable conditions then existed in respect to real estate which made loans dependent upon real estate equities and direct loans upon real estate non-liquid and difficult to collect; that among the resources of the “old” bank was a substantial amount of such loans and other loans considered bad and doubtful, which, assets were of such objectionable character that although there mig’ht be a considerable ultimate salvage from them, the Chicago Clearing House Association had >passed a resolution requiring that assets of such character to the extent of at least $3,000,000 be entirely eliminated from the resources of the bank; that if this were done without substituting other assets of sound value and liquid, it would result in a substantial impairment of the capital investment of the “old” bank; that the deposits of the “old” bank had been reduced during the 30 days immediately preceding the date of this agreement to the extent of approximately $2,700,000; that presumably the depositors of the “old” bank felt their deposits were in jeopardy, and that it was deemed by the directors and shareholders of the “old” bank, owning or representing a substantial portion of its capital stock, that it would be to the best interests of “all the creditors and all of the shareholders of the Old Bank”; that the “new” bank as organized should assume certain specific liabilities ' thereinafter identified ‘ ‘ and none other” and take over the assets of the “old” bank as shown on its books and liquidate them in an orderly manner and use the proceeds, first, to the payment of liabilities assumed, with interest, returning any surplus assets, after the payment of all such liabilities with interest to the “old” bank; that it was deemed advisable that action should be taken without delay; that it was not expedient to give notice and call or hold a meeting of the shareholders; and the “new” bank having been organized under the laws of Illinois, it was mutually agreed by the parties that the “old” bank covenanted that its resources and liabilities assumed were clearly shown by its books and records as at the close of business on February 8, 1930, and were truly reflected in the balance sheet attached and made a part of the agreement; that the “old” bank sold, conveyed, transferred, assigned, set over and delivered to the “new” bank “all of its property, assets, business and effects, rights, titles and interests, real and personal of every kind, nature and description and wheresoever situated, and all of its right, title and interest therein, including choses in action (and particularly claims of Federal Income Tax Refunds, if any) and any and all property, rights, titles and interests of every kind, nature and description held in trust by or in the possession of any other person, persons, or corporations "whatsoever for the benefit of the Old Bank, or in which said Bank has any right, claims or interests of any kind, directly or indirectly, all as at the close of business on February 8, 1930, to be the absolute property forever of the New Bank, upon the terms and conditions herein contained.”

The agreement further provided that the 1 ‘ old” bank should at any time thereafter execute and deliver such instruments as would be legally sufficient and requisite to vest in the “new” bank full and complete, absolute legal and equitable title in and to all of the property, assets and effects sold and transferred thereunder, and, in particular, to deliver to the “new” bank such instruments of assignment and conveyance as would be legally sufficient and requisite to vest in the “new” bank full and complete legal title to all of the bonds and securities theretofore deposited by the “old” bank with the auditor of public accounts of Illinois, pursuant to the provisions of an act to provide for and regulate the administration of trusts by trust companies approved June 15, 1887, and that the auditor should not release these securities to the “new” bank until the “old” bank had fully complied to his satisfaction with all the requirements of that act; and further that the “old” bank would execute and deliver such instruments as would be legally sufficient and requisite to vest in the “new” bank full and complete legal title to all securities theretofore deposited by the “old” bank with the United States Treasury Department to secure deposits of the Board of Trustees Postal Savings or with any other depositary.

By the fourth paragraph of the agreement the “new” bank assumed and agreed to pay certain specific liabilities of the “old” bank as shown by its books and records at the close of business on February 8, 1930. These liabilities were- enumerated, and it was expressly stated that the “new” bank should not be understood to assume or agree to pay any liability or obligation except such as were specifically designated in this paragraph.

By the fifth paragraph the “new” bank undertook and agreed to reimburse itself for the liabilities so assumed out of the assets transferred, it being agreed that all cash on hand and amounts due from banks would be immediately applied as a credit upon the liabilities assumed and that like credit should be from time to time given as cash was realized from other resources transferred.

In this agreement the value of the capital stock of a safety deposit vault company which was transferred from the “old” bank to the “new” bank was fixed at $1 plus the cash surplus as shown by its statement of February 8,1930, and this amount was to be applied as a credit upon the liabilities assumed. The value of the banking house equity and equipment without deduction for any general real estate taxes accruing after January 1, 1930, including stationery and supplies, was fixed at the sum of $500,000, less the amount of accrued interest on the mortgage on the banking house, and this value, it was agreed, should also be applied as a credit upon the liabilities assumed.

By another provision it was agreed that on or before 90 days from the date thereof the president and a majority of the directors of the “new” bank, or a committee of three directors selected by a majority of the directors of the new bank, should go through the loans, including real estate bonds and mortgages, transferred to the “new” bank and should list such items as in their judgment should be valued on the liabilities assumed and the face value of all such loans, plus accrued interest, if any, and the face value of all such real estate bonds and mortgages plus accrued interest, if any, less unearned commissions thereon required to be paid and paid by the “new” bank, if any, so listed, should thereupon be applied as a credit on the liabilities assumed; that up to the time that any loan, other asset or item, transferred to the “new” bank thereunder, had been applied as a credit, the net cash proceeds realized by the representing principal, interest or income, should be applied as a credit on the liabilities assumed, with the understanding, however, that after the date on which any such had been credited, all proceeds and avails therefrom, and all interest or income in respect thereof, should be the sole property of the “new” bank and should not be applied as a credit on the liabilities assumed.

By another provision it was agreed that the daily balances of the liabilities assumed, less credits applied thereon, should draw interest at the rate of six per cent per annum; that the “new” bank should pay personal property taxes levied and assessed against the stock of the “old” bank for the years 1928 and 1929, and should pay federal income taxes and property taxes assessed against the assets of the “old” bank as the same should become due and payable, but that this should not be deemed to be an acknowledgment of any assumption of such liabilities by the “new” bank, although the amount so paid should be added to the amount of liabilities assumed and the “new” bank reimbursed therefor out of the assets transferred to it.

It was agreed that the “new” bank should have absolute power, without notice, to sell, surrender, compromise, settle or dispose of any assets transferred to it by the “old” bank, including the right to enter into any agreement,, reorganization, consolidation or merger, or to make advances or loans for the purpose of conserving the assets transferred; that the “new” bank should have the right to be reimbursed in full with interest, and that it should have the sole right in its discretion to determine the application of payments and credits.

All diligence in collection, presentment, etc., was waived. The absolute power to determine the legality, validity, etc., of all liabilities assumed was granted the “new” bank with the provision that neither neglect nor omission should create any liability against it.

For the purpose of enabling the “new” bank to conserve, protect, etc., it was given the absolute power to use the name of the “old” bank in all matters, whether in or out of court, and the “old” bank agreed, at the request of the “new,” to sign, execute and deliver in the name of the “old” bank any and all instruments deemed by the “new” bank necessary to enable it to conserve, protect, collect, liquidate and dispose of any of the assets. The “new” bank was given the power to employ attorneys, counsel, agents, accountants, auditors or other employees, in connection with the handling of the assets transferred to it, but was released from liability for the action of such employees, except for failure to use good faith in the selection thereof. It was provided that the “new” bank should not be entitled to any compensation or commission for its services in connection with the liquidation of the assets of the “old” bank provided, however, that the “new” bank should be reimbursed out of the assets so transferred, for any out-of-pocket expense or cost it might incur in connection with such services, including the compensation and charges of any attorneys, counsel, agents, etc. The “new” bank was given the right at any time, in its discretion, to sell, assign, transfer and deliver the whole or any part of the assets transferred to it, in parcels or in bulk, at public or private sale, either with or without notice to the “old” bank.

It was further provided that all the assets of the “old” bank transferred to the “new” should be applied, first, to the payment of the “new” bank of the amount of the .liabilities assumed, plus additions, and when these liabilities had been paid in full the “new” bank should turn over to the “old” bank any surplus assets, or the proceeds of any assets, then remaining in its hands. It was expressly provided that the assets conveyed by the “old” bank to the “new” bank should not be deemed to include any contingent liability of the stockholders of the “old” bank to the “old” bank or the creditors of the “old” bank, and that the “new” bank should in no event have the right to avail itself of or to enforce for itself or for any person, firm or corporation any stockholders’ or directors’ liability against the stockholders and directors of the “old” bank.

The “new” bank took possession of these assets under this agreement, and the note of complainant, which was then past due, was among the assets transferred and delivered. G-leason, who theretofore had acted as vice president and manager of the bond department of the “old” bank and who had sold these securities to complainants, was vice president and director of the “new” bank. Several other officers and directors of the “old” bank also became officers and directors of the “new” bank. Only a few of the stockholders of the “old” bank, however, became stockholders of record in the “new” institution.

It is contended here in behalf of the receiver and of the “old” bank that the interest of complainants was several, not joint, and that a decree in their favor jointly was therefore unwarranted. These defendants cite Brady v. Koontz, 145 Ill. App. 582, and Moore v. Terhune, 161 Ill. App. 155, in both of which cases judgments at law were reversed. However, in equity where the matter in litigation has a common origin, as here, the parties having separate interests may be joined. Regan v. Grady, 343 Ill. 423. Moreover, the evidence here shows a joint interest of complainants in the litigation. The objection of a misjoinder was not raised by the pleadings nor by objection or exception to the report of the master, and therefore will be regarded as waived. Crawford v. Schmitz, 139 Ill. 564; Bird v. Bird, 218 Ill. 158; Devine v. National Safe Deposit Co., 240 Ill. 369; Cunat v. Supreme Tribe of Ben Sur, 249 Ill. 448; Bevans v. Murray, 251 Ill. 603; McIntyre v. McIntyre, 287 Ill. 544. It is true, as was held in Tribune Co. v. Thompson, 342 Ill. 503, and Continental Clay Co. v. Illinois Kaolin Co., 232 Ill. App. 596, that the pleadings, the proof and the decree must correspond, but these bonds were payable to bearer and were offered and received in evidence by complainants, and while the evidence shows that originally some of them were billed by the “old” bank in the name of one complainant and some in the name of the other, we hold that to be immaterial in view of the fact that the bonds were payable to bearer and were offered and received in evidence in support of their joint action which had its origin in similar transactions in which the evidence shows both husband and wife participated.

It is also urged that the right of action was purely legal and that complainants had an adequate and complete remedy. Brauer v. Laughlin, 235 Ill. 265, and similar cases are cited. So far as the “old” bank was concerned, the proceeding was upon contracts obtained by fraud and misrepresentation, and equity has concurrent jurisdiction with the law courts of all such actions. Eggers v. Anderson, 63 N. J. Eq. 264; Mahar v. O’Hara, 4 Gilm. 424; Youngquist v. Hunter, 227 Ill. App. 152; Mayr v. Chesman & Co., 195 Ill. App. 587; Owens v. Union Bank of Chicago, 260 Ill. App. 595. Moreover, the bill prayed and the decree granted equitable relief in that it enjoined the transfer by defendants of complainants ’ note. The court therefore had equitable jurisdiction and having such jurisdic-. tion would in accordance with well established rules settle by its decree all questions at issue between the parties.

It is urged that the remedy at law was complete, but that clearly was not the case. Moreover, the rule that equity will not take jurisdiction where there is a remedy at law is a qualified one. It is so held in Barton v. DeWolf, 108 Ill. 195, on which defendants rely. That rule is intended for the protection of the courts and is not to be used as a shield by litigants. Curtis v. LeMoyne, 248 Ill. App. 99. Then, too, this defense was not set up in the answer and therefore was not available. Kaufman v. Wiener, 169 Ill. 596.

It is urged that by reason of the statute, “An act for the Protection of Bank Depositors,” approved June 4, 1879, in force July 1, 1879, Cahill’s St. ch. 38, U 38 et seq. (Smith-Hurd’s Ill. Rev. Stats. 1931, ch. 38, sec. 64) the agreements on the part of the “old” bank to repurchase these bonds were illegal and void, and that whether by reason of the statute or otherwise the same were void as being ultra vires the “old” bank. We had supposed this question was settled contrary to the contention of defendants so far as the Appellate Court of this district can settle any question. The question of ultra vires was directly passed upon in Freedman v. Madison & Kedzie State Bank, 259 Ill. App. 519. It is true that the act in question was not specifically called to our attention in that case. It was presented, however, to the Supreme Court for consideration upon the application for certiorari, which was denied. The defense of ultra vires was also held unavailable by the second division of this court in the later case of Awotin v. Atlas Exchange Nat. Bank, 265 Ill. App. 238, and in Madison-Kedzie Trust & Savings Bank v. Dean, 263 Ill. App. 646, where the same court had under consideration a case in which the “new” bank, defendant here, undertook (claiming as purchaser in due course) to sustain a judgment by confession at law entered upon a note taken by it from the “old” bank under circumstances substantially similar to those which appear here. In the case of Hoffman v. Sears-Community State Bank, 269 Ill. App. 644 (Abst.), opinion filed February 6, 1933, the statute in question, as well as a number of cases which it was there insisted had not been called to our attention in these previous cases, received consideration.

This rehearing was not granted for the purpose of reviewing these decisions upon this point. On the contrary, we adhere to the views heretofore expressed. We find it impossible to hold that in a court of equity the ‘1 old ’ ’ bank may be heard to repudiate its contract as ultra vires or against public policy and at the same time keep complainants ’ money which was received as consideration for the execution of the contract.

It was urged in the original briefs, and it is contended quite at length in the petition for rehearing by the “old” bank, that some of these agreements for the repurchase of these securities were the personal agreements of Gleason rather than the obligations of the “old” bank. The finding of the master is to the effect that the agreement to repurchase appeared in typewritten form on each of the statements given to complainants at the time of each purchase; that the money for the purchase was paid to and received by the “old” bank, and that in several instances the bank recognized these agreements by repurchasing some of the bonds from complainants under the terms thereof. In this last respect, this case is clearly distinguishable from Mead v. Altgeld, 136 Ill. 298; Kinser v. Calumet-Fire Clay Co., 165 Ill. 505; and Braun v. Hess & Co., 187 Ill. 283, which (as requested by the solicitors of the “old” bank in their petition for rehearing) we have carefully re-examined and find to be inapplicable.

It is suggested that the representations made when the bonds were sold to- complainants referred only to the value of the property and therefore cannot be held to amount to actionable fraud, and that scienter must also be proved. Wharf v. Roberts, 88 Ill. 426; Dowden v. Wilson, 108 Ill. 257; Holdom v. Ayer, 110 Ill. 448; Murphy v. Murphy, 189 Ill. 360, are cited. There is no question about the general propositions of law stated in the opinions in those cases, but the facts here show gross misrepresentations of actual facts and the proof of knowledge of the falsity of the representations made by the representatives of the “old” bank in its behalf was abundant. The master found (and the chancellor approved the finding) that there was fraud in fact with knowledge. We have carefully examined the evidence bearing on this point and cannot say that the finding of the master as approved by the chancellor is against the manifest weight of the evidence.

It is urged that the “new” bank was an innocent purchaser of complainants’ note for value, but, as already stated, the “new” bank took the note after maturity, and that defense, even if it were true in fact, cannot avail. Justice v. Stonecipher, 267 Ill. 448. Moreover, Gleason, vice president and manager of the bond department of the “old” bank, who sold these securities, was an officer and director of the “new” bank. Several other officers and directors of the “old” bank became officers and directors of the “new” bank. These facts were sufficient to establish notice to the new corporation. Simmons v. Roseland Security Vault Co., 331 Ill. 563.

It is suggested that the interest of Gleason was adverse to that of the bank and that the general rule would therefore not be applicable. Seaverns v. Presbyterian Hospital, 173 Ill. 414, is cited, but we find nothing in the evidence that would justify a finding that the exception to the rule is applicable. The only reason for granting this rehearing was that the question of whether the “new” bank was personally liable for the obligation of the “old” bank to these complainants might be re-examined. This is the only question concerning which the court entertained any serious doubt, namely, whether a personal judgment for the amount found due in complainants’ favor upon the accounting between complainants and the “old” bank should have been entered.

The report of the master is to the effect that the “new” bank is not personally liable, but the report contains no statement of the particular facts or rules of law which in the opinion of the master compelled that conclusion. An exception of complainants to this finding of the master was sustained by the chancellor.

' The- original briefs of complainants argued that the “new” bank was personally liable by reason of its failure to comply with the Bulk Sales Law, Cahill’s St. ch. 121a, ¶ 1 et seq. See Laws of Illinois, 1913, p. 258. Complainants cite to this point Johnson Co. v. Beloosky, 263 Ill. 363, and LaSalle Opera House Co. v. LaSalle Amusement Co., 289 Ill. 194. Complainants also point out that the Bulk Sales Act of May 13, 1905, was held unconstitutional in Off & Co. v. Morehead, 235 Ill. 40, as being discriminatory and unconstitutional in that it selected a class of persons, namely, owners of stocks of merchandise, and subjected them to special burdens and obligations. That case was followed in the later case of Pogue v. Rowe, 236 Ill. 157. The Act of 1913 provides that it shall be applicable to sales, transfers and assignments of a stock of merchandise, or merchandise and fixtures or “other goods and chattels of the vendor’s business.” In Johnson Co. v. Beloosky, supra, this act was held constitutional and applicable to a bakery business. In the LaSalle Amusement Co. case the law was also held applicable to the transfer and sale of the lease, furniture, fixtures and good will of a theater business.

It was argued in that case that the law was applicable to all personal property employed by nontrading or nonmercantile corporations, but the court held, citing Weskalnies v. Hesterman, 288 Ill. 199, that “the act did not apply to farmers but only to those engaged in selling merchandise, commodities and other wares.” In People v. Sherrard State Bank, 258 Ill. App. 168, where the assets of one bank had been transferred to another, it was held that the phrase “and other articles, goods,” etc., in the Bulk Sales Act meant the articles and goods of the same kind as previously enumerated in the act. Complainants say that the LaSalle Amusement Co. case was not called to the attention of the court there, but we see nothing in that case which could have possibly persuaded the court to a contrary conclusion.

The Bulk Sales Act is in derogation of the common law and therefore strictly construed. Superior Plating Works v. Art Metal Crafts Co., 218 Ill. App. 148; Stony Island Trust & Savings Bank v. Stony Island State Sav. Bank, 240 Ill. App. 195. We hold that the act is not applicable to the transaction between the “old” and the “new” bank and that it is not generally applicable to a transfer of the assets of a banking corporation.

It is next contended that the “new” bank is liable to complainants because the “old” bank was trustee for complainants after demand, and that the “new” hank expressly assumed trust liabilities. The theory seems to be that the “old” bank by reason of its fraud and deceit in this transaction became liable as a trustee to complainants upon its refusal to carry out the obligations of its contracts as agreed. People v. American Trust & Savings Bank, 262 Ill. App. 458; In re Northrup, 152 Fed. 763, are cited. The contract of the “new” bank, however, obligated it, with items specifically assumed, to pay only “trust department deposits.” The claim of complainants does not answer this description. Moreover, we' hold that the mere failure of the “old” bank to perform its obligations would not impress a trust upon any part of its assets in favor of complainants. The cases cited are clearly distinguishable. The contract of the “new” bank did not obligate it expressly to assume the obligation disclosed by this record either upon the theory that the same was found due upon the accounting, was a deposit, or impressed with a constructive trust.

The decree in this case found that the “ ‘new’ bank, by taking over all of the' assets of said ‘old’ bank, assumed such liability and is therefore liable to complainants to the same extent as the ‘old’ bank is liable. ’ ’ In conformity with that finding a personal judgment against the “new” bank jointly with the “old” was entered, and in the former opinion this court sustained that part of the decree upon the theory that the assets of the “old” bank was a trust fund for the benefit of its creditors and that the conduct of the “new” bank with respect thereto had been such as to render it personally liable. After re-examination of the record,, we think it can hardly be said that the cause was brought or tried upon that theory. Paragraph 11 of the bill states that the “new” bank took over the assets of the “old” bank with the aim and object of relieving it from its obligations on the bonds sold by it to the general public. Paragraph 16 of the bill avers that by reason of the fact that the “old” bank turned over all of its assets to the “new” institution, a judgment at law would be of no avail, and that complainants ought to be decreed to have a lien on all the assets acquired by the “new” bank. Paragraph 17 of the bill avers upon information that no consideration whatever was paid to the “old” bank for the assets transferred to the ‘ ‘new. ’ ’ The bill does not explicitly aver any fraudulent intention on the part of the “new” bank, nor does it anywhere aver alleged liability of the “new” bank other than by reason of its possession of assets it obtained by transfer from the ‘4old” bank. The bill therefore does not seem to have been framed upon the theory that the “new” bank was liable to the full amount claimed by complainants upon the trust fund theory.'

Neither was this question raised by objection or exception to the master’s report. There was an exception to the finding of the master that the “new” bank did not assume the obligations of the “old” bank (not upon the trust fund theory), but apparently, for the reason, as claimed, that the “new” bank was liable because it expressly assumed such liability. Therefore, since the bill was not brought nor the case tried upon the trust fund theory, it is apparent that the doctrine was erroneously applied, in the former opinion of this court.

The briefs of complainants and their reply to the petition for rehearing cite a number of cases where a corporation has been held liable for claims against its predecessor in business, — some upon the theory that there was a consolidation, others that there was a merger, others that defendant was a successor in business, others that there was a de facto consolidation and some upon the theory' that the capital stock and assets of the old institution were a trust fund for the creditors.

The doctrine that the capital stock of a corporation is a trust fund for creditors seems to have been first announced in this country in the case of Wood v. Dummer, 3 Mason’s Report 308, where the opinion of the court was rendered by Justice Story. It has been expressly held in Illinois that the doctrine is not applicable except when the corporation is insolvent or when the transaction injuriously affects creditors directly. Johnson v. Canfield-Swigart Co., 292 Ill. 101. The opinion in that case points out that it had been said upon good authority (4 Thompson on Corp., 2d ed., secs. 3421, 3422) that the trust fund theory had been abandoned and that the rights of creditors were worked out upon the doctrine of fraud. Our Supreme Court, however, said:

“We think it is more accurate to say that both doctrines are still recognized in those States where the trust doctrine has been enforced, and that each one of them is applicable only in the cases where the respective doctrines properly apply to the particular facts to be considered.”

In the Cumulative Supplement to the second edition of Thompson on Corporations, sec. 3421, p. 616, the author sums up the status of the trust fund doctrine as follows:

“The trust fund doctrine is now generally construed to mean no more than that the assets of a corporation constitute a trust fund upon which the creditors have an equitable lien for the payment of their debts, superior to the rights of the stockholders. The doctrine does not prevent a corporation from disposing of the whole or any part of its assets for value and in good faith, and where it does so, the purchaser takes the assets discharged from any trust in favor of the creditors of the selling corporation.” The cases are collected in a note to Skirvin Operating Co. v. Southwestern Electric Co., 71 Okla. 25, 174 Pac. 1069, 15 A. L. R. 1112; in a note to American Ry. Express Co. v. Commomvealth of Kentucky, 190 Ky. 636, 228 S. W. 433, 30 A. L. R. 543, also in a note to Davis v. Hemming, 101 Conn. 713, 127 Atl. 514, 39 A. L. R. 143. An examination of these cases discloses that the trust fund doctrine where it is applied has its basis in the abhorrence with which a court of equity regards any scheme or device which results in the perpetration Of a fraud. The cases in which the doctrine has been considered are usually quite complicated as to the facts so that it is not difficult to find grounds upon which any one of them may be distinguished from any and all the others.

The petition for rehearing filed in behalf of the “new” bank presents an analysis of the cases cited in our original opinion: Northern Pac. Ry. Co. v. Boyd, 228 U. S. 482; Valley Bank v. Malcolm, 23 Ariz. 395, 204 Pac. 207; First Nat. Bank in Carmen v. Willis, 128 Kan. 681, 280 Pac. 782, and many other cases. A number of cases have been cited by complainants also in their reply. Deserving attention, we think, is American Ry. Express Co. v. Commonwealth, 190 Ky. 636, where a new company which took over all the assets of an old one within the State was held personally liable for the debts of its predecessor, it appearing that prior to the sale the old corporation had sufficient assets to meet all its obligations. There is no proof of that kind in this case. ,

In Chicago Smelting & Refining Corp. v. Sullivan, 246 Ill. App. 538, it appears from the opinion that this court was there requested to hold that where a corporation was organized to take over and continue the business of a firm, all the assets of the firm being transferred to it in exchange for its stock, the debts and obligations of the partnership would become the debts and obligations of the corporation without any express agreement to assume the liabilities. In that opinion we stated that a conflict of decisions on that point was recognized, and that so far as we were informed the question had never been directly decided by our Supreme Court. In the same case upon a second appeal to this court, in 252 Ill. App. 259, we held the corporation to be liable only for such debts as it had assumed. The trust fund doctrine was not presented or relied upon in that case.

It is apparent here that it was not the intention of the parties to create a merger or consolidation of these two corporations, but, on the contrary, the “new” bank was taking the assets of the “old” for the purpose of liquidation. The agreement without question discloses the purpose to prefer a part of the creditors of the corporation to the exclusion of the others, and this is permissible in this State in the absence of fraud. Hurt v. Ohlman, 349 Ill. 163. The bill in this case did not specifically pray for relief by way of a personal judgment against the “new” bank, and we think the decree so far as it held the “new” bank personally liable for the deficiency was unwarranted.

As we stated in the former opinion, it was technically erroneous to render a judgment against the receiver of the “old” bank. Upon a reconsideration of the case, we think it must also be held that the court erred in entering judgment against the “new” bank in the sum of $17,265.25, plus interest. The decree will therefore be modified by striking therefrom the words “and Will H. Wade, its receiver, and Madison-Kedzie Trust and Savings Bank,” and as thus modified will be affirmed.

Affirmed as modified.

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


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Western Plumbing Supply Company, Appellant, v. H. Horn et al., Appellees.
    Gen. No. 36,287.

      Opinion filed March 6, 1933.
    Rehearing denied March 20, 1933.
    John E. Owens, for appellant; Clyde O. Fisher, of counsel.
    Edwin Terwilliger, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by complainant from a decree which, sustaining certain exceptions of defendants to the report of a master, dismissed the bill of complaint for want of equity. The bill was filed June 7, 1930, and averred that defendants, Carl Biemer and Grace Biemer, were husband and wife; that Grace Biemer on February 15, 1930, was the owner of certain real estate described and was engaged in the erection and construction of certain improvements thereon; that Carl Biemer, with the authority, knowledge, permission and consent of his wife, made a contract with one H. Horn, a heating contractor, whereby Horn undertook and agreed to do necessary work for a certain price, the terms and conditions of which contract were unknown to complainant; that on February 15,1930, Horn made a contract with complainant, whereby he purchased heating materials for the reasonable value of $951.56 from complainant; and that the first delivery was made on February 15, 1930, and the last one on March 15, 1930; that the materials were delivered at the premises and used in the construction of the improvements, and that a lien was claimed for the sum of $951.56..

The seventh paragraph of the bill averred that complainant attempted to serve the owner with a mechanic’s lien notice in conformity with the provisions, of the statute, but that in the exercise of reasonable diligence she could not be found, and that on April 29, 1930, within 60 days after the' final delivery of the materials, complainant caused a-verified subcontractors’ claim for mechanics’s lien to be filed in the office of the clerk of the circuit court. Complainant prayed that it might be decreed to be entitled to a lien.

Grace and Carl Riemer answered, admitting that Grace Riemer was the owner, and admitting the verbal contract with Horn for the sum of $960; and further alleging that Horn defaulted and failed and refused to complete his contract and that she was not advised as to complainant’s contract with Horn, or as to the time of deliveries or the amount due, and therefore asked for strict proof. The answer denied that upon reasonable diligence Grace Riemer could not have been found so as to be served with notice.

The master reported that $951.56, less $46.70 (a credit to which defendants were entitled), leaving a balance of $904.86 was due. The master also reported the claim for lien was filed in the office of the clerk of the circuit court.

The master reported with reference to the attempted service that it appeared that on April 15, 1930, at the hour of three o’clock p. m., an agent of complainant appeared on the premises and attempted' to serve a notice on Gratie Riemer; that although he knocked on the door and window and'rang the bell, no one came to the door or admitted him inside the house; that later on the same day, at about 8:30 o’clock in the evening, the agent of complainant, together with another person, returned to the premises and again knocked on the door and window and rang the bell; that during the second trip the agent of complainant noticed a window shade slightly raised and upon looking under it saw a man and a girl in one of the rooms of the house; that the man put his finger to his lip, indicating to whoever else was in the room to keep quiet; that again no one came to the door or admitted him; that after these two attempts by its agent to serve Grace Biemer, complainant substituted constructive service for personal service by filing a statement in' the office of the clerk of the circuit court.

The report of the master stated that defendants contended that complainant did not use reasonable diligence; that they also contended that Carl Biemer was the duly constituted agent of his wife, Grace Biemer, the owner of the premises; that defendants further contended (and the evidence showed) that although Grace Biemer was an invalid whose locomotion was impaired and who had other physical disabilities, nevertheless she was able to walk around her house, do ordinary household duties, walk to the back of the yard for the purpose of disposing of garbage and feeding "chickens in the yard of the premises; and that it was customary for Grace Biemer to answer the doorbell during the day or when her husband was not at home ; that defendants further contended that Carl Biemer was employed by the Wieland Dairy Company; that he was accustomed to go to his place of employment daily, and at times in the evenings he went to the theater with his wife; that if complainant had used reasonable diligence, as provided by statute and required by law, it would have obtained personal service either on Grace Biemer or Carl Biemer, the agent of Grace.

The master pointed out that defendants further contended that in the evening of April 15, 1930, there was a card party at their home; that during the greater part of that day Grace Riemer, together with a friend, was making preparations for the party, and that from about 8:30 o’clock in the evening until after midnight, they were entertaining their guests at the card party; that testimony was offered by defendants to show that during all that time no one was heard to knock at the door or ring the bell; that no one other than the invited guests at any time during that day or evening requested admittance to their home; that this evidence was corroborated by several witnesses, who claimed to have been present at the party, and who stated that they did not hear anyone trying to gain admittance or entrance into the home of the Riemers and that they remained at this card party from about 8:30 o’clock p. m. until after midnight.

From the evidence introduced the master was of the opinion that complainant used reasonable diligence as provided and intended by section 24 of the Mechanics ’ Liens Act of the State of Illinois, Cahill’s St. ch. 82, ¶ 24; that the two attempts made by complainant to serve its notice of subcontractor’s claim for lien were sufficient to constitute reasonable diligence as intended by the act. The master found from all the circumstances surrounding the case that complainant had exercised fair, proper and due degree of care required by him under the Mechanics’ Liens Law, or which would be. required under similar circumstances from a man of ordinary prudence and activity, for the purpose of substituting constructive service for personal service.

Objections filed by defendants to this report were overruled and upon the hearing stood as exceptions. As already stated, the chancellor sustained the exceptions of defendants and held upon the evidence that complainant did not use reasonable diligence in attempting to serve defendant, Grace Riemer, with a subcontractors’ notice of claim for mechanics’ lien as provided by section 24 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, ¶ 24.

The decree further finds that Carl Riemer, husband of Grace Riemer, was her agent in connection with the improvements and alterations being made on the premises, and that complainant did not use reasonable diligence in attempting to serve him with such notice. The bill of complaint was therefore dismissed for want of equity.

The controlling question in the case is whether complainant complied with the provisions of section 24, Cahill’s St. ch. 82, ¶ 24 (Smith-Hurd’s ¶. Rev. Stats. 1931, chap. 82, sec. 24, p. 1834). That section in substance provides that a subcontractor shall within 60 days after the completion of his contract cause a written notice of his claim and the amount due or to become due thereunder, to be personally served on the owner or his agent or architect. The section further provides that if the land is registered the notice shall not be served but filed in the office of the registrar of titles; further, that the notice shall not be necessary when the sworn statement of the contractor or subcontractor shall serve to give the owner notice of the amount due and to whom due.

Section 25 provides that in all cases where the owner, agent, architect or superintendent cannot upon reasonable diligence be fqund in the county in which said improvement is made, or shall not reside therein, the statement of lien shall be filed in the office of the clerk of the circuit court.

Defendants contend in the first place, as the decree finds, that Carl Riemer was the agent of the owner, Grace Riemer, in the making of the improvement, and that there was no evidence of any attempt to serve him with a notice. Complainant, on the other hand, contends, as the master found, that there is no evidence in the record to substantiate such a claim; further, that complainant did not know of the agency of Carl Riemer if it existed, and was not informed to that effect, and that service upon the husband, Carl Riemer, would therefore have been ineffectual if it had been made. Of course, the conceded fact that Grace Riemer was the wife of Carl Riemer would not of itself be sufficient, to establish the fact of his agency in her behalf or justify service upon her in connection with this specific transaction. Throgmorton v. Mosak, 245 ¶. App. 330.

However, the bill here charges that the owner was “engaged” in the erection and construction of the improvement, and “for that purpose, Carl Riemer, husband of, and by and with the authority, knowledge, permission and-consent of said Grace Riemer, owner, did then and there have a contract with one H. Horn, heating contractor,” etc.

The answer admits that the contract was between complainant and “defendants,” using the plural number. The evidence taken on the hearing disclosed the agency of Carl Riemer. The notice which complainant prepared for personal service was addressed to both Carl and Grace Riemer, and both are named in the claim filed. Indeed, Flannigan, employee of complainant, testified that he told Mr. Riemer the facts as the same appeared on complainant’s ledger; that the first time he, Flannigan, saw Mr. Riemer was a week or 10 days after March 15, 1930. It therefore appears that complainant was dealing with Mr. Riemer and recognizing him as the agent of Mrs. Riemer in the transaction. ■

Moreover, Carl Riemer testified that he saw Flannigan on the day the contract was made, and then told him that he, Riemer, was working for the Wieland Dairy Company. There is no doubt of the agency of Carl Riemer for Mrs. Riemer, and it seems altogether certain that complainant either knew, or by the exercise of the slightest diligence would have known, of this agency before the time for service of the lien notice expired. There is no proof of any attempt to ascertain whether Mr. Riemer or any other person was the agent of the owner. Notice upon Carl Riemer would have been sufficient. We are disposed to hold that we cannot say that the finding of the chancellor in this respect is manifestly wrong. Jarden v. Pumphrey, 36 Md. 361. Complainant, however, contends that this defense was not set up in defendants ’ answer and is therefore not available, citing Millard v. Millard, 221 Ill. 86; Potter v. Fond du Lac Park Dist., 337 Ill. 111; and Belleville Sav. Bank v. Souris, 266 Ill. App. 565.

Irrespective of our views upon this point, we prefer to put our decision on another ground, namely, that there was a failure on the part of complainant to comply with the statute which requires “reasonable diligence” to obtain personal service on the owner before constructive service by filing with the clerk of the circuit court may be resorted to. In the first place, the service being precedent to the creation of a lien on defendants’ real estate, one claiming under the statute must bring himself strictly within the terms of it. Such is the holding* of our Supreme Court, in numerous cases, of which it will be sufficient to cite North Side Sash & Door Co. v. Hecht, 295 Ill. 515; Hoier v. Kaplan, 313 Ill. 448. We are not unmindful that in the construction of such statutes it is not necessary to give to the words the narrowest possible meaning, as was held in Warner v. King, 267 Ill. 82; and we do not forget that in the construbtion of these sections we may properly take into consideration the provisions of other sections of the statutes, such as sections 5 and 32, Cahill’s St. ch. 82, ¶ ¶ 5 and 32, which prescribe the duties of owners.

Section 24 expressly provides that notice shall not be necessary where the sworn statement of the contractor serves to give the owner actual notice, but there is no proof here that the owner had the notice required to be given under the provisions either of section 5 or of section 32. The rights of the complainant under these sections are not raised in this suit.

But again passing over the question of the agency of Carl Biemer, which could have been easily ascertained by even the slightest diligence, we think it must be held that this record fails to disclose “reasonable diligence” in the endeavor to secure personal service on Grace Biemer. The evidence which has already been recited discloses that the employee of complainant called only twice on the same day for the purpose of serving her. The last material was delivered March 15. The attempted service was made April 15 thereafter. No further service was attempted after that time. The evidence is uncontradicted to the effect that during all this time Mrs. Biemer was performing her household duties; that she was often outside in her yard, where service could have been easily obtained, and, as defendants point out, the server of the notice went only to the front door and was at that door for only a few minutes. He returned with another employee the evening of the same day, but their conduct, as recited, at the time would have justified the closing of the home against him. It is not without significance that when this suit was brought the sheriff of the county had no difficulty apparently in obtaining speedy service upon these defendants. The summons was delivered to the sheriff of Cook county on Saturday, June 7, and it was returned personally served on both defendants on Tuesday, June 10. It cannot, we think, be held that complainant exercised either reasonable or any other kind of diligence. In similar cases under circumstances much more difficult a failure to obtain service has been held to show lack of diligence. In one case the officer seeking defendant went to the back door, the front door, and the barn. Sayre-Newton Lumber Co. v. Park, 4 Colo. App. 482, 36 Pac. 445. In another, a failure to serve a defendant because of the presence of vicious dogs upon the premises was held not sufficient to show that defendant could not be found in the county. Wilson v. Leo, 19 Cal. App. 793, 127 Pac. 1043. In In re Bayley, 132 Mass. 457, it was held that the fact that the sheriff went to the debtor’s residence where he heard the debtor was probably not in and left for him a notice of the time and place of sale, failed to show reasonable diligence. In LeGrand v. Fairall, 86 Iowa 211, a sheriff having* a summons ag’ainst a wife returned it, saying that he had delivered a copy of it to her husband at his residence because, she being ill the sheriff could not see her, and the service was held void within the provisions of a statute which required a showing that defendant could not be found in the county. See also Grigsby v. Wopschall, 25 S. D. 564, 127 N. W. 605; McCracken v. Flanagan, 127 N. Y. 493, 28 N. E. 385. We are not unaware that these authorities may in some respects be distinguished and that the decisions of other States in the construction of provisions of our mechanics’ liens statutes are not necessarily persuasive (Hoier v. Kaplan, 313 Ill. 448), but the briefs cite no case in Illinois which is directly in point, and these cases are interesting as illustrating the attitude of the courts of other states toward somewhat similar questions. As to the diligence required by a notary under similar circumstances in Illinois, see the recent case of Graham, v. O’Connor, 350 Ill. 36, and as to the necessity of strict compliance with a similar statute in order that constructive service may be substituted, see Werner v. Shons Co., 341 Ill. 478.

We are constrained to hold that the undisputed evidence in this case showed that defendant failed to exercise reasonable diligence, and that if such diligence had been exercised personal service could have been obtained. There was therefore failure to comply with the provisions of the statute which were conditions precedent to constructive service, and, irrespective of other questions, the bill was therefore properly dismissed for want of equity.

As this point is controlling it will be unnecessary to discuss other alleged errors.

The decree is therefore affirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    McKeown Bros. Company, Appellee, v. Ogden Kennel Club et al., Defendants. Appeal of James B. Tuthill, Appellant.
    Gen. No. 36,306.

      Opinion filed March 6, 1933.
    Rehearing denied March 20, 1933.
    David H. Caplow, for •appellant; Earle Gr. Kallbn, of counsel.
    Sanders, Childs, Bobb & Wescott and Wyatt Gr. Angelo, for appellee Edward Hines Lumber Co.; Francis L. Harris, of counsel.
    McKinney, Lynde & Grear, for appellee McKeown Bros. Co.; George H. Grear, of counsel.

      A. S. & E. W. Frobhlich, for appellee Charles J. Newburgh; Edwin A. Hobbld, of counsel.
    Anderson & Anderson, for appellee C. E. Peterson Co.
   Mr. Justice O’Connor

delivered the opinion of the court.

In a proceeding brought to foreclose a mechanic’s lien a decree was entered finding there was due complainant, McKeown Bros., $9,430.92; to Edward Hines Lumber Company $12,773.83; to C. E. Peterson Co., a corporation, $2,310.92; and to Charles J. Newburgh $220.24. The decree was in the usual form in such cases, and James B. Tuthill, one of the defendants, prosecutes this appeal.

The record discloses that defendant, James B. Tut-hill, owned 47 acres located at the intersection of Ogden avenue and Plainfield road, near the town of Lyons in Cook county, part of the land having been used as a stone quarry. March 23, 1927, Tuthill leased 15 59/100 acres of the 47 to the Ogden Kennel Club, a corporation, for a period of three years, with an option to renew for an additional two years. The lease provided that the tenant would not use or permit anyone to use the premises or any building thereon for any use or purpose in violation of the laws of the United States, State of Illinois, or ordinance of the Village of Lyons; that the premises be kept in a clean and wholesome condition and all health and police regulations observed; that the tenant would not use or permit the premises to be used for any purpose “other than athletic exhibitions and sporting events”; that the tenant would pay all costs and expenses of constructing any building or improvements on the premises and keep them free and clear from all mechanics ’ liens; that before the tenant constructed any building or improvement it would submit plans and specifications of the proposed building structures or improvements to the landlord; and before any work would be done toward the construction of any building it would deposit in a bank cash in an amount sufficient to pay the cost of construction; the lease further provided how the money deposited should be paid out by the bank; that the buildings and improvements be insured, etc., and that upon the termination of the lease all building structures and improvements would belong to the landlord.

Shortly after the execution of the lease $70,000 was deposited in the bank to insure that the cost of the improvements would be paid. The tenant,- the Ogden Kennel Club, proceeded to erect a grandstand, kennels, paddock, judges’ stand, track, fences, betting-boards, control power, and other structures said to be necessary in holding dog races. And in the erection of these structures arrangements were made for parimutuel betting-. The contract for the construction of these structures was let- by the Ogden Kennel Club to J. C. O’Brien, and he in turn entered into contracts for labor and material with the lien claimants and others. Complainant, McKeown Bros. Co., was to furnish labor and material for the construction of the grandstand at an agTeed price of $36,000; this contract was approved by the Ogden Kennel Club, the tenant; the work was completed and. paid for except $5,500. Mc-Keown Bros. Co. also made other contracts direct with the Ogden Kennel Club, one of which was to provide labor and material for a wood floor system, and another to furnish labor and material to complete repairs occasioned by damage done by a tornado; and some other additional work was done. The contract price of these was paid except a balance of $2,290.50.

Hines Lumber Co. furnished the lumber, which .it delivered, unloading it on the. 15 acres covered by the lease. It's bill for the lumber was $10,497.59, no part of which has been paid. The lien claimant, Charles J. Newburgh, contracted with O’Brien to furnish glass and glazing material, and delivered the material and did his work under the contract, but has not been paid. Peterson & Co.’s claim was for furnishing and delivering millwork and extra material. It delivered this material and completed its contract, but has not' been paid.

It is contended that the decree is wrong and should be reversed because all of the structures built upon the premises “were erected and were to be used for the purpose of conducting a racing track for racing dogs, which racing was to be controlled and conducted for the purpose of gambling and wagering in violation' of law”; and that the contract between O’Brien and the Kennel Club is void as contrary to public policy and in violation of law. On the other side it is contended that none of the contracts involved was in violation of any law or contrary to the public policy of the State.

The defendant, in support of his contention, points out that the statute of this State authorizing parimutuel betting applies only to horse racing and has no application to dog racing. Cahill’s St. ch. 38, ¶ 316. Such has been the construction placed upon the act by another division of this court. Hawthorne Kennel Club v. Swanson, 257 Ill. App. 499. That the contracts involved are against public policy and void, defendant cites Denver Park and Amusement Co. v. Kirchhof, 89 Colo. 399; Spurgeon v. McElwain, 6 Ohio 442; Mosher v. Griffin, 51 Ill. 184; and Mills Novelty Co. v. King, 174 Ill. App. 559.

The case reported in 89 Colo. 399, was a mechanic’s lien case. There the tenant erected a- race track, grandstand and other structures on the leased premises and for a time operated a dog racing enterprise. The court said, p. 401: “This business, because of its gambling features, apparently collided with the criminal law and expired without paying for the improvements.” One of the defenses pleaded was that the improvements on the premises were “for the purpose of conducting a racing track for racing dogs . . . and such racing was controlled and conducted . . . for the purpose of gambling and wagering in violation of the laws of Colorado and for gambling and betting on the results of such races in violation of such laws; and that persons were encouraged to enter said premises for the purpose of gambling and betting on the races and the results of the races, . . . bet large sums of money upon the races, with the consent and procurement of” the tenant; and that the parties knew that the work, labor and material furnished were to be used for the purpose of gambling and that the parties engaged in a concerted plan to violate the laws in relation to gambling and betting; that a substantial part of the compensation of the one constructing the buildings and other structures “was to be paid from profits derived from conducting such gambling and betting.” A demurrer to this defense was sustained and this was held by the Supreme Court of Colorado to be reversibly erroneous. We think it obvious that that case is not in point. In that case it was admitted by demurring to the answer that the parties had entered into a concerted plan to violate laws against gambling; that they encouraged persons to enter the premises for the purpose of gambling and betting on the dog races with the consent and procurement of the lessee, and that a part of the lien claimants’ compensation claimed for work and labor was to be paid from the profits derived from gambling on the races.

In the Spurgeon case, supra (6 Ohio 442), the statute of Ohio forbade, under penalty, any tavern keeper, etc., from permitting to be kept a nine-pin alley, and it was held that a carpenter erecting such alley could not recover for his work. There is nothing in the statute of this State that we know of that prohibits the construction of any of the structures built on the 15 acres in question.

In the Mills Novelty case, supra (174 Ill. App. 559), it was held that where slot machines capable of a lawful and of an unlawful use were sold to one known to be a gambler, the seller would be charged with knowledge that the buyer intended to use them for the unlawful purpose of gambling.

In the instant case there is no direct evidence that there was betting on the dog races, nor is there any evidence that the lien claimants entered into any conspiracy with anyone to violate the law; and there is no contention that part of their compensation was to be paid with money derived from the profits of the dog races. McKeown Bros. Co., under their contract, did certain construction work on the premises; Hines Lumber Co. merely delivered lumber; Newburgh furnished glass and labor; Peterson Co. furnished millwork and other material.

The most that can be said to substantiate the defendant’s contention is that each of these parties in all probability knew that when all of the structures on the ground were completed dog races would be run, and that there would be bettting on the races which would be illegal. This is entirely insufficient, under the law of this State, to defeat their claims. Hoefeld v. Ozello, 290 Ill. 147; Israel v. Selman, 263 Ill. App. 351; Lurton v. Gilliam, 1 Scam. (2 Ill.) 577; Frank v. McDonald, 86 Ill. App. 336; Note 1, 53 A. L. R., p. 1366.

In the Hoefeld case, supra (290 Ill. 147), in which the principle involved is similar to that we are now considering, a great many of the authorities are discussed. It was there held that where premises in Chicago were leased to be used for a restaurant and saloon, with a clause in the lease giving the tenant the right to terminate the lease within a certain period of time “in the event that the State Sunday-closing law is generally enforced,” was not a provision sanctioning the violation of the Sunday-closing law of this State, and that the tenant could be held for the rent. It was there contended that it was the intention of the parties executing the lease to keep the premises open on Sunday in vior lation of law. The court said (p. 149): “There is nothing in the lease that supports this argument. There is no requirement in the lease, expressed or implied, to operate a saloon on Sunday. ’ ’ The court there also said that the courts of this State would not aid in the enforcement of a contract entered into with the intention of carrying out anything prohibited by law, and said (pp. 149, 150): “But the weight of authority, in this country at least, is to the effect that the mere knowledge of the seller that the buyer intends an unlawful use of the goods sold will not void the contract between the parties.” — citing authorities from Arkansas, Alabama and Rhode Island. The court quoted with approval from the Arkansas case (Ashford v. Mace, 103 Ark. 114) as follows: “ ‘In 9 Cyc. p. 571, it is. said: “In the United States, while some courts have taken the English rule, most of the courts have taken a different view, and have held that the mere knowledge of the seller of goods or services or of the vendor or lessor of property.that the buyer intends an illegal use of them is no defense to an action for the price or for rent.” . . . Although the lessor may have had knowledge that the premisés would be used for an immoral purpose, unless, coupled with that knowledge, there was an intention on his part when he executed the lease that the premises should be used for such immoral purpose the lease contract would not be void. . . . The lessor is not the keeper of the conscience of the lessee and has no police control over him in such matters, and mere knowledge on the lessor’s part that the lessee is going to use the premises for an unlawful purpose does not make the lessor a participant in that purpose, for mere knowledge that the lessee may or will use the premises for an unlawful purpose is not, of itself, sufficient to show that the lessor intended that they must or shall be so used.’ ” And continuing, the court quoted from the Rhode Island case (Almy v. Greene, 13 R. I. 350) as follows: “ ‘The decision of the court is that knowledge on the part of the lessor, before and at the time of the execution of the lease, that the lessee intended to use the demised premises in violation of the statute was not sufficient to render the lease -void, in the absence of any other participation in or furtherance of the illegal purpose by the lessor.’ ” And that the mere knowledge on the part of the landlord that the tenant in that case was purchasing liquor for the purpose of selling it in a territory where the sale of such liquor was prohibited by law did not render the lease invalid; that in addition to such knowledge there must be some “participation” by the landlord in the illegal purpose; and our Supreme Court there continuing said (p. 151): “In Lurton v. Gilliam, 1 Scam. 577, there was an action to recover for cloth sold, based on an election bet. The court said (p. 579): ‘It does not appear that the defendants in error were in any way parties to the bet or encouraged it, and we do not perceive that their contract for the sale and delivery of the cloth was tainted with a participation in the original agreement between the parties. Their mere knowledge of it could not certainly connect them with it, and having parted with their property under the arrangement, common honesty surely requires that the party at whose instance it was delivered, conformably to his agreement, should be held answerable for the value of the merchandise delivered. ’ ’ ’ The court there further quoted from Zeigler v. Illinois Trust and Savings Bank, 245 Ill. 180, where it was said: -“Bach argument made by appellees in support of this contention involves a breach of the contract and is not founded on the performance of it.” The court further said in the Hoefeld case, that the tenant by the terms of the lease contracted to do nothing illegal but that its conduct afterward in carrying on the business in violation of the Sunday-closing law was illegal. The court then discusses further authorities from this State and also from New York and New Hampshire, and held that the lease could not be voided by the tenant on account of the clause above quoted, saying (pp. 153, 154): “As was said by Lord Mansfield in Holman v. Johnson, Cowper, 341: ‘The objection that a contract is immoral or illegal as between the plaintiff and defendant sounds at all times very ill in the mouth of the defendant. ’ ”

In the Israel case, supra (263 Ill. App. 351), we had occasion to consider the enforcement of a gambling contract. We there cited and discussed a number of the authorities including Lurton v. Gilliam (1 Scam. 577), 53 A. L. R. p. 1366; Mosher v. Griffin (51 Ill. 184); Hoefeld v. Ozello (290 Ill. 147); and Frank v. McDonald, supra (86 Ill. App. 336); and held in effect that unless the party against whom the alleged contract was sought to be enforced not only had knowledge of the illegality of the contract but also participated in it, such contract would not be void. In the instant case, under the facts and the authorities as above stated, we think the contract, so far as it involved the claims for mechanic’s lien, is not unenforceable.

A further point is made that the furnishing of labor and material for the erecting of the grandstand and other structures on the premises was not the furnishing of labor and material for which the Mechanics’ Liens Act gives a lien; and it is argued that the grandstand, kennels, runway, entrance towers, judges’ stands, etc., “are not the sort of structures that come within the definition of a house or other buildings and are neither permanent nor designed for the habitation of man or animals or the shelter of property.” Section 1 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, U 1, provides “That any person who shall by any contract . . . furnish material, fixtures, apparatus . . . for the purpose of or in the building, altering, repairing or ornamenting any house or other building, walk or sidewalk, . . . driveway, fence or improvement or appurtenances thereto on such lot or tract of land . . . shall have a lien upon the whole of such lot or tract of land. ” We think there is no merit in this contention. All of the materials furnished and the labor performed went toward the improvement of the premises, and by the terms of the lease they could not be removed after the expiration of the term covered by the lease. Haas Elec. & Mfg. Co. v. Springfield Amusement Park Co., 236 Ill. 452.

It is also contended that there is a fatal variance between the pleadings and the evidence, because it is alleged that the improvements were erected on the 47 acres, while the proof showed that they were placed on the 15 acres which was a part of the 47 acres. The lease between the Kennel Club and the defendant, Tut-hill, was not recorded and its contents were first brought to the attention of the complainant during the progress of this suit. The decree gives the lien upon the 15 acres. The claimed variance is immaterial.

A further complaint is made that the complainant failed to prove the date of the completion of its work and the date it served its notice for lien. The bill alleged that May 21,1927, was the date of the completion of the work. Complainant’s evidence was in substance that the work on the grandstand was completed May 21, 1927, and the notice of lien is dated July 15,1927. And a witness testified that July 15 was the proximate date he served the notice on Tuthill. There is no evidence to the contrary. Under these facts the notice was served within the time provided by Cahill’s St. ch. 82, 1i 24. Moreover, when the notice was offered in evidence several specific grounds of objection were urged against its admission, but it was not objected to on the ground that it had not been served in time. It is the law that specific objection made to the introduction of evidence is a waiver of all other grounds. First Nat. Bank of Hayward v. Gerry, 195 Ill. App. 513.

Defendant also contends that complainants, Mc-Keown Bros. Co., Hines Lumber Co., and Newburgh, each failed to prove the value of the material and labor furnished under the contracts with O’Brien, as required by section 21 of the Liens Act, Cahill’s St. ch.,82, If 21. That section provides that a subcontractor shall have a lien for the value of the material and labor furnished by him; and it is argued that complainant failed to allege or prove the value of the labor and material furnished; that Hines Lumber Co. alleged that O’Brien agreed to purchase for a certain agreed price a number of feet of lumber, and that there was no evidence of the value of the lumber. And it is also argued that Newburgh likewise failed to make such proof although such failure is not pointed out. The evidence is to the effect that the prices to be paid to these parties by 0 ’Brien were agreed upon. What one pays for anything at a fair sale, there being no suspicious circumstances, is prima facie evidence, of its value. Cloyes v. Plaatje, 231 Ill. App. 183, and cases therein cited. Defendant offered no evidence that the prices agreed upon were unreasonable, and the contention of defendant is without merit.

A further contention is made that “complainant has failed to allege with sufficient certainty a statement of the contracts made directly with the Ogden Kennel Club, and the dates when made, ’ ’ and that it has failed to prove the terms of the contracts made directly with the Ogden Kennel Club; the dates when made, when the work was completed, and the furnishing of any labor and material thereunder; and it is argued that complainant claims a lien for labor and material furnished not only under its contract made direct with O’Brien but also under its contract made direct with the Ogden Kennel Club, the tenant; and that section 11 of the Liens Act, Cahill’s St. ch. 82, If 11, requires that the bill or petition shall contain a brief statement of the contracts on which the claim is founded, the dates when made and when completed, and also set forth the amount due; and that the allegation of the bill in the instant case is that the contracts were entered into between April 24 and June 9,1927, and that this is not a sufficient compliance with section 11. The bill alleges the making of the contracts as above stated, and then follows a list of 21 items describing the particular improvements and the amount therefor set opposite; and further, that complainant completed the work and delivered the materials on June 9, 1927., We think the allegations are sufficient.

The argument of defendant, in support of its further contention, is that as to 19 of the items set up in the bill there is no competent testimony as to who ordered the work, when it was ordered, nor the price agreed to be charged; that the witness Kennecott testified concerning the job tickets, how they were made up and then written in a notebook, etc., and that this evidence is insufficient. The total amount claimed for the work done under the direct contracts with the Kennel Club, less payments made, was $2,290.50; the agreed contract price of two contracts totaled $5,285. There is other evidence as to the price agreed upon between the parties. There was no evidence to the contrary. Moreover, the evidence showed that the Kennel Club paid the complainant, on account of the work it did under its contract, more than $5,000. There is other evidence in the record but we think it unnecessary to discuss it further. There was no serious errpr committed by the master in permitting legal questions to be put to O’Brien — certainly none that would warrant us in disturbing the decree.

A further contention is made that the complainant failed to serve a notice of lien as required by section 24 of the Liens Act, Cahill’s St. ch. 82, ¶ 24, in that the notice failed to state with whom the contractor had his contract. The notice was in the form provided by statute. By it the defendant, Tuthill, was notified that the complainant had been employed by 0 ’Brien to furnish labor and material and to construct a grandstand and other improvements on the property and that there was due and would become due, under the contract, $7,790.50. Tuthill had entered into the lease with the Ogden Kennel Club which provided in detail for the improvements to be put on the property. It is obvious that the contention made is entirely frivolous.

It is further said the evidence fails to show that the Ogden Kennel Club was served with the notice, that this is required under the law and that the notice to Tuthill was insufficient. The statute requires that notice be served on the owner or his agent or architect or the superintendent having* charge of the building or improvements. (Section 24 of the Liens Act, Cahill’s St. ch. 82, ¶ 24.) Here Tuthill was the owner of the property, and we think the notice to him was sufficient under the statute. The Kennel Club had no interest in the property because its lease had been terminated by forcible detainer proceedings about four months after the lease was made.

Contention is made by defendant that the contract provided that before payment could properly be made there should be produced a certificate of the architect, and that there was no allegation or proof of the issuance of the certificate. Complainant alleged the making- of its contract with O’Brien; that it had complied with the terms and conditions of that contract, and that the work had been accepted by O’Brien and the Kennel Club. This allegation we think sufficient. Moreover, there is a certificate offered by complainant certifying that complainant is entitled to $5,500 from the Kennel Club under the terms of its contract; this purports to be signed by the architects. There is further evidence in the record as to this certificate which we think it unnecessary to refer to. In the absence of any evidence to the contrary, we think this is sufficient, and the contention cannot be sustained.

Defendant finally contends that Peterson Co., one of the lien claimants, failed to prove the date of the service of its notice of lien and the date of the last delivery of material; that it furnished material for use on the premises occupied by the Kennel Club and that it has failed to serve a notice of lien as required by section 24 of the Liens Act, Cahill’s St. ch. 82, ¶ 24. A witness testified that he served the notice on defendant Tuthill July 15, 1927; that before that he tried to serve the Kennel Club but could find no representative of it. We think this was sufficient. A witness further testified, “We furnished everything as per contract”; that he saw the materials after they were delivered on the premises; that the delivery .was made May 19. We think this was a sufficient compliance with the statute and there was no evidence to the contrary.

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

Affirmed.

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


text:
    Joe Karsh, Complainant, v. Isaac Glicksberg et al., Appellees. Appeal of Cody Trust Company, Intervening Petitioner, Appellant.
    Gen. No. 36,324.
    Opinion filed March 6, 1933.
    Rehearing denied March 20, 1933.
    Deerees, Buckingham, Jones & Hoeeman, for appellant ; Vincent O’Brien and Thomas R. Mulroy, of counsel.
    No appearance for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the Cody Trust Company, the intervener, seeks to reverse an order entered by the superior court of Cook county, June 24, 1932, denying the prayer of its petition for a writ of assistance.

The record discloses that December 2, 1931, Joe Karsh filed his bill to foreclose a second mortgage on real estate and for the appointment of a receiver. The mortgagors,' Isaac M. Q-licksberg and Jennie Grlicksberg, his wife, as well as other persons, were made parties defendant. The bill alleged that the premises were improved by a large building capable of yielding a large income by way of rental, and there were other allegations tending to show the necessity for the appointment of a receiver. December 4, 1931, an order was entered appointing a receiver.

April 30, 1932, the Cody Trust Company, as trustee of a prior trust deed on the property, filed its intervening petition and it was alleged that the trust deed was given by the Grlicksbergs to secure an indebtedness of $45,000 on the same property. The petitioner set up certain defaults under the trust deed, alleged the appointment of the receiver, and avered that on account of such appointment it was unable to obtain the rents derived from the premises as it was entitled tó under the trust deed. The prayer was that the receiver and all parties in possession of the premises surrender possession to the petitioner, the Cody Trust Co., as trustee.

Joe Karsh, complainant, filed an answer to the petition denying that the Cody Trust Co. was entitled to possession of the real estate. May 20, 1932, an order was entered in which the chancellor found that the allegations of the petition were true; that the trust deed represented by the Cody Trust Co., the intervener, was a valid lien on the premises; that there was default in the payment of the indebtedness secured by that trust deed; that by reason of such default the intervener was entitled to the possession of the premises, and to the rents, issues and profits derived therefrom, and it was ordered that the receiver and all parties “who may be in possession of the premises . . . forthwith surrender possession thereof to Cody Trust Company, as Trustee”; the receiver was ordered to file his final report within five days and that upon the coming in of the report and the approval of it, the net rents be turned over by the receiver to the Cody Trust Co., as trustee.

June 18, 1932, the Cody Trust Co., as trustee, filed another petition in which it set up the order above mentioned; that it had made a demand for possession upon the parties in possession of the premises in accordance with that order but that the defendants Isaac M. Grlicksberg, who occupied the first floor apartment of the premises, and Hyman C. Kadison, who occupied the third floor apartment of the premises, refused to surrender possession; that these two persons were made parties defendant, served with summons, filed their appearance in the cause, and were notified of the application for the order upon them to surrender possession to the Cody Trust Co., as trustee. The petition prayed that a writ of assistance issue directed to the sheriff, and that the sheriff without delay proceed to put the petitioner in possession of the part of the premises occupied by Grlicksberg and Kadison.

June 24, 1932, an order was entered denying the prayer of the petition for the writ of assistance, and it is from this order that the Cody Trust Co., as trustee, appeals.

Ho brief has been filed on behalf of Grlicksberg or Kadison. In support of its appeal, the Cody Trust Co. contends that the order of May 20, 1932, determined its right to possession of the premises and therefore it was entitled, as a matter of course, to the writ of assistance to enforce the order. We think this contention cannot be sustained. While the court by its order of May 20 ordered that all parties in possession deliver up possession of the premises to the Cody Trust Co., as trustee, that the receiver file his report, and upon its approval the net proceeds of the rent be turned over to it by the receiver, the effect of this was that the Cody Trust Co., as trustee, was entitled to receive the rents derived from the premises. It was the duty of the Cody Trust Co., as trustee, under the allegations of its petition to endeavor to collect all the rents and profits it could from the premises so as to reduce the indebtedness (Lightcap v. Bradley, 186 Ill. 510) but in the absence of any showing that Glicksberg and Kadison were objectionable as tenants, or that they refused to pay rent to the trustee, we are unable to say that the order denying the writ of assistance was unwarranted.

The order of the superior court of Cook county appealed from is affirmed.

Order affirmed.

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


author: Mr. Presiding Justice Kerner

text:
    First District.
    Thekla Roessner, plaintiff in error, v. Hamburg-Amerikanische Packetfahrt Aktien Gesellschaft, also known as Hamburg-American Lines, defendant in error.
    Gen. No. 36,037.
    Opinion filed January 7, 1933.
    Rehearing denied January 21, 1933.
    Harry Hamill and Carl Strover, for plaintiff in error; Carl Strover, of counsel. Butz, Von Ammon & Marx, for defendant in error; Frederic E. Von Ammon, of counsel.
   Mr. Presiding Justice Kerner

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    A. W. Gentry for use of Central State Bank of Evanston, defendant in error, v. C. Ernest Guyton and Harry A. Cumfer, plaintiffs in error.
    Gen. No. 36,003.
    Opinion filed January 7, 1933.
    Heth, Lister & Collins, for plaintiffs in error. Gilbert, Rommel, Burger & Baker and Edward J. Kelley, for defendant in error.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Ruth M. Mondientz, appellee, v. Robert Reid and A. D. Schlauder, appellants.
    Gen. No. 36,138.
    Opinion filed February 6, 1933.
    Rehearing denied February 20, 1933.
    George H. Moloney, for appellants; Richard E. Keogh, of counsel. Socrates & Davis and Louis L. Cohen, for appellee; Hieholas A. Socrates and Louis L. Cohen, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice MeSurely

text:
    Chicago Title & Trust Company, appellee, v. Leo Wallach et al., defendants, on appeal of Henry Vander Valk, appellant.
    Gen. No. 36,218.
    Opinion filed February 6, 1933.
    Livingston & Kaufman, for appellant. Ernest A. Eklund and Norman R. Miller, for appellee; Frederick J. Bertram and John N. Thornburn, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Joseph Kulak, appellant, v. John Blaha et al., appellees.
    Gen. No. 36,243.
    Opinion filed February 6, 1933.
    Samuel L. Rosenblatt, for appellant. Joseph W. Koueky, for appellees.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Ernest Hardy, administrator of the estate of Pearl Hardy, deceased, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 36,272.
    Opinion filed February 6, 1933.
    Hoyne, O’Connor & Rubinkam, for appellant. Brown & Stout, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Max Thorek, appellee, v. Union Indemnity Company, appellant.
    Gen. No. 36,321.
    Opinion filed February 6, 1933.
    Rehearing denied February 20, 1933.
    Church, Haft, Robertson, Crowe & Spence, for appellant; Charles M. Haft and Burt A. Crowe, of counsel. John A. Bloomingston, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Sam Hoffman, appellee, v. Sears-Community State Bank (as successor by consolidation or merger to Community State Bank), appellant.
    Gen. No. 36,352.

      Opinion filed February 6, 1933.
    Lederer, Livingston, Kahn & Adler, for appellant; Charles Lederer and Sigmund Livingston, of counsel. Abrams & Abrams, for appellee; Maurice Abrams and Abraham H. Mailer, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Reincke-Ellis Company, appellee, v. Morton Manufacturing Company, appellant.
    Gen. No. 36,364.
    Opinion filed February 6, 1933.
    John T. Richards and Irving B. Campbell, for appellant. J. J. Cooke, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Edla Dixon, appellee, v. City of Chicago, appellant.
    Gen. No. 36,373.
    Opinion filed February 6, 1933.
    William H. Sexton, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for appellant; Benjamin Nelson and Samuel E. Pineus, Assistant City Attorneys, and Carl J. Appell, Assistant Corporation Counsel, of counsel. Royal W. Irwin, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Albert F. Johnson, appellee, v. Wayte Laundry Company, appellant.
    Gen. No. 36,382.
    Opinion filed February 6, 1933.
    Homer R. Hopps, for appellant. Freyburger, Baker & Rice, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    Eli Pommerville, defendant in error, v. Windale Hotel Company et al., plaintiffs in error.
    Gen. No. 36,160.
    Opinion filed February 6, 1933.

      Connell & Gombiner and C. B. Haffenberg, for plaintiffs in error; Reuben R. Stein, of counsel. No appearance for defendant in error.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Marie Ward, appellant, v. Donald Seeley, administrator of the estate of Emma Fassett, deceased, appellee.
    Gen. No. 36,228.
    Opinion filed February 6, 1933.
    George D. Sullivan and Martin M. Ward, for appellant; Martin M. Ward, of counsel. David J. A. Hayes, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Sigmund Woolner for the use of West Side Trust & Savings Bank, defendant in error, v. Sig Woolner Company, plaintiff in error.
    Gen. No. 36,240.
    Opinion filed February 6, 1933.
    Rehearing denied and opinion modified February 20, 1933.
    Solomon & Borden, for plaintiff in error. Arkin, Berman & Marks, for defendant in error.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Louis Silver, appellant, v. David Sidransky et al., appellees.
    Gen. No. 36,249.
    Opinion filed February 6, 1933.
    Rehearing denied February 21, 1933.
    Julius H. Gross and Arnold Davidson, for appellant. No appearance for appellees.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Appeal of Chicago Title & Trust Company, complainant, for order entered on intervening petition of Uptown State Bank and answer thereto. Chicago Title & Trust Company, appellant, v. Arnold Apartments Building Corporation, appellee.
    Gen. No. 36,259.
    Opinion filed February 6, 1933.
    Urion, Drueker, Bishop & Boutell, for appellant; William B. Gem-mill and T. L. Hamer, of counsel. Ela, Grover & March, for appellee; Lyle H. Rossiter, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Thomas E. Powers, administrator of the estate of Marie Powers, deceased, appellee, v. Chicago City Railway Company et al., appellants.
    Gen. No. 36,278.
    Opinion filed February 6, 1933.
    Weber, Miller, Deffenbaugh & Donovan, for appellants; Frank L. Kriete and John E. Kehoe, of counsel. Ednyfed H. Williams, for appellee; William A. Lankton, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Charles Abramson, plaintiff in error, v. Blue Motor Coach Lines, defendant in error.
    Gen. No. 36,221.
    Opinion filed February 6, 1933.
    Finn & Miller, for plaintiff in error. A. H. Brown and A. J. W. Appell, for defendant in error; A. J. W. Appell, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Adams Construction Company, appellee, v. Henry T. Holsman and Lawrence Sweeney, appellants.
    Gen. No. 36,237.
    Opinion filed February 6, 1933.
    Balhatchet & Best, for appellants; Willard Balhatchet and Owen Rail, of counsel. Russell, Murphy & Quigley, for appelllee; Edward Contorer, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The Leader Stores, appellee, v. Union Indemnity Company, appellant.
    Gen. No. 36,256.
    Opinion filed February 6, 1933.
    Church, Haft, Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel. Epstein & Arvey, for appellee; Norman Asher and Charles W. Mead, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Cora Van De Veer, appellee, v. South Suburban Motor Coach Company, appellant.
    Gen. No. 36,275.

      Opinion filed February 6, 1933.
    Anson H. Brown, Arthur Poorman and A. J. W. Appell, for appellant; A. J. W. Appell, of counsel. Samuel Cohen and Norman Peters, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Richard Bowbal, a minor, by Anton Bowbal, his father and next friend, appellee, v. John Pozniak, a minor, and Michael Jurek, appellant.
    Gen. No. 36,284.
    Opinion filed February 6, 1933.
    John A. Bloomingston, for appellant. Paul V. Pallaseh and Ewart Harris, for appellee!
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Wilson

text:
    Jacob L. Rissman, plaintiff in error, v. Jacob Gidwitz, defendant in error.
    Gen. No. 35,836.
    Opinion filed February 8, 1933.
    Ringer, Wilhartz & Hirsch, for plaintiff in error; Samuel E. Hirsch and Ben A. Stewart, of counsel. Alfred Beck, for defendant in error.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    John J. Minogue, appellee, v. Frank Zolpus, appellant.
    Gen. No. 35,946.
    Opinion filed February 8, 1933.
    Hermann P. Haase, for appellant. Henry Mitgang, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    John Wold, appellee, v. James Slagel and Phillip Laramie, trading as Dixie High-Grade Laundry, and Jack Leiter, appellants.
    Gen. No. 36,035.

      Opinion filed February 8, 1933.
    William McKinley and Paul E. Price, for appellants. Charles G. Palmer, for appellee; Clyde C. Fisher, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Wojceich Antczak, defendant in error, v. One Mrs. Majewski, trading as White Star Bakery, plaintiff in error.
    Gen. No. 36,129.
    Opinion filed February 8, 1933.
    William T. Diekerman and Vincent P. Ignowski, for plaintiff in error. No appearance for defendant in error.
   Mr. Presiding Justice Wilson

delivered the . opinion of the court.


text:
    International Geneva Association of Chicago, Illinois, appellant, v. George W. Schwartz, trading as George W. Schwartz & Company, appellee.
    Gen. No. 36,202.
    Opinion filed February 8, 1933.
    Bederman, Klein & Gralnek, for appellant; Richard R. Klein, of counsel. Bennett & Colbaeh, for appellee; Herbert Bebb, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    Minneapolis Larabee Flour Company, appellee, v. I. Berger, appellant.
    Gen. No. 35,763.
    Opinion filed February 8, 1933.
    Rehearing denied February 20, 1933.
    L. A. Sherwin, for appellant. Edward E. Contarsy, for appellee; B. M. Steiner, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    H. Channon Company, appellant, v. Whitman & Barnes, Inc., appellee.
    Gen. No. 35,772.
    Opinion filed February 8, 1933.
    Towney, Wild, Campbell & Clark, for appellant; J. Arthur Miller and Richard C.. Bleloeh, of counsel. Poppenhusen, Johnston, Thompson & Cole, for appellee; Edward J. Fleming, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Jacob Cottin and Rudolph J. Joseph, trading as Cottin & Joseph, appellees, v. Morris I. Pickus and Compass Sales Corporation, appellants.
    Gen. No. 35,787.
    Opinion filed February 8, 1933.
    G. A. Buresh and Charles W. Raban, for appellants. No appearance for appellees.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Gates Audit Company, appellee, v. Von Winkler Laboratories, Inc., appellant.
    Gen. No. 35,814.
    Opinion filed February 8, 1933.
    J. Harold Mosely, for appellant; Denison, White & Mosely, of counsel. Francis E. Matthews, for appellee; Clement F. Springer, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson as Auditor of Public Accounts of the State of Illinois, complainant, v. Progressive State Bank et al., defendants. Julius Roth and Anna Roth, intervening petitioners, v. Chicago Title & Trust Company, as receiver, etc. (defendant), appellee. Appeal of Julius Roth, and Joseph Hoffstadter, executor of the last will and testament of Anna Roth, deceased.
    Gen. No. 35,861.
    Opinion filed February 8, 1933.
    Kahn, Gettleman & Kahn, for appellants; Roy S. Gaskill, of counsel. Kirkland, Fleming, Green & Martin, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Canada Casing Company, appellee, v. Union Products Company, appellant.
    Gen. No. 35,884.
    Opinion filed February 8, 1933.
    Gaylord D. Adsit, for appellant. Charles V. Falkenberg, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    Joe Michelotti, appellee, v. H. W. Elmore & Company, appellant.
    Gen. No. 35,085.
    Opinion filed February 8, 1933.
    Heneen, Healy & Lee, for appellant; Harry W. Lippineott and Donald N. Schaffer, of counsel. Palmer & Marino, for appellee; Charles L. Mahony, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Amy Schaver, administratrix of the estate of Howard Schaver, deceased, plaintiff in error, v. Dr. Walter Rendtorff and Dr. Charles M. Fox, defendants in error.
    Gen. No. 35,639.
    Opinion filed February 8, 1933.
    Rehearing denied February 20, 1933.
    Guy C. Guerine, for plaintiff in error. Edward W. Rawlins and Francis X. Busch, for defendants in error.
   Mr. Justice Hebei

delivered the opinion of the court.