text:
    R. B. Lynn et al., Appellants, v. Trustees of Schools of Township No. 16, Pope County, Illinois, Appellees.

      Opinion filed September 18, 1933.
    Durfee & Holmes, for appellants.
    B. F. Anderson and D. F. Rumsey, for appellees.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

R. B. Lynn and others, as taxpayers of Township 16, Range 7, in Pope county, filed their bill for injunction against the school trustees of such township, to restrain them from prosecuting, by privately employed attorneys, a number of suits which they had instituted for the recovery of moneys accruing to the several school districts of the township, and from paying such attorneys therefor out of the public school funds of said township.

The bill avers that in April, 1931, the trustees of schools, claiming there was due and owing to them as such trustees, moneys accruing to the several school districts of the township, engaged two attorneys, J. W. Browning and B. F. Anderson, to bring and prosecute suits for the collection of such debts; that they contracted to pay them for their services out of the school funds of the township, and that pursuant to such agreement the suits were brought and are still pending.

It is further alleged that neither attorney was State’s attorney of Pope county, nor appointed by the court to act as such; that during the time in question, such office was held by one J. A. Whiteside, who was not disqualified from acting, and that the trustees did not request nor authorize said State’s attorney to bring the suits for the recovery of such moneys. The bill further charges that it was the duty of the State’s attorney to act in the premises; that the contract with the other attorneys was contrary to public policy, and that any money paid out thereunder would be a misappropriation of public funds. The bill prayed for an injunction restraining the school trustees (appellees herein), from prosecuting such actions through said privately employed attorneys, and from paying them any fees oh account thereof, from the school funds of the township.

Appellees answered the bill, admitting the contract, and averring its legality; also, that there had been a former adjudication of the questions involved. Appellants here (complainants below), filed exceptions to certain parts of answer, which the court overruled. Appellants stood by their exceptions, the bill was dismissed, and they are prosecuting this appeal to reverse the decree.

The cause was heard at the February term and an opinion filed; afterward a rehearing was granted upon petition of appellants.

Appellants contend, on page 4 of their petition for a rehearing, “a specific sum due a school district must be brought by the school district in its own name.” Also, on page 6 thereof, “again, we.suggest that there is no Act of the Legislature making township trustees fiscal agents for school districts; permitting them to maintain suits to recover funds accruing to the school districts, although they are, however, fiscal agents for the township and township funds.”

Cahill’s St. ch. 122, fí20, provides: “The school business of all school townships shall be transacted by three trustees. . . .' Such trustees shall he a body politic and corporate. . . . Such corporation shall have perpetual existence, with power to sue and be sued. ’ ’

In section 41 of the act, Cahill’s St. ch. 122, ff 41, it is provided: “The trustees of schools shall cause all moneys for the use of the township and the districts to be paid to the township treasurer.” In section 71 of the act, Cahill’s St. ch. 122, fí71: “The township treasurer shall be the only lawful depositary and custodian of all township and district school funds, and shall demand, receipt for and safely keep, according to law, all bonds, mortgages, notes, moneys, effects, books and papers of every description belonging to his township.” Section 70, Cahill’s St. ch. 122, ff 70, obligates the treasurer to keep a complete set of records, showing all the receipts and disbursements of township and school district funds, as well as to record the proceedings of the meetings held by the trustees. By section 38, Cahill’s St. ch. 122, fí 38, authority is granted the trustees, at each semiannual meeting, and at such other meetings as they may think proper, to examine all books, accounts and vouchers of the treasurer, and to make such order for their security or collection as may be necessary.

As will thus be seen, the treasurer is made the only lawful custodian of school funds, both those of the township, as well as the several districts; the trustees are required to cause such funds to be so deposited with the treasurer; the latter is required to keep an accurate and true account and record of such funds, their receipt and distribution; the trustees are charged with transacting all the school business of the township, and are empowered to examine the accounts and records of the treasurer and make all necessary orders for the collection and preservation of the school funds and property.

The funds belonging to the several school districts do not go into the keeping of the directors, but are, by the statute, to be paid to the treasurer, to be by him kept and paid out upon the order of the district directors.

That a suit for the recovery of such moneys should be instituted by and in the name of the trustees, appears to be settled by the decisions of both our reviewing courts. In Tappan v. People, 67 Ill. 339, the action was in the name of the People, for use of the trustees of schools, to recover from the county collector and his sureties on his official bond the amount of tax levied by the eight school districts of the township, and by him collected. It was objected that the suit was wrongfully brought; that it should have been for the use of the township treasurer, or for the use of the school districts. The court, however, held that the contention was unfounded, and that suit was properly brought for the use of the 'trustees of schools of the township.

Trustees of Schools v. Stokes, 3 Ill. App. 267, was an action by trustees of schools against a township treasurer who failed to pay over to his successor the school funds in his hands as such treasurer. The court discussed the question whether the action should have been for the use of the school districts of the township, and concluded: “We are, therefore, clear in opinion that when a delinquent treasurer goes out of office and retains moneys which he received by virtue of his office, and refuses to pay the same to his successor in office, that a right of action is created thereby in favor of the board of trustees, and against the delinquent and his sureties upon his official bond, whether an apportionment or division of the fund has been struck or not among the various districts of the township. And when an apportionment has been made to the several districts, it is not necessary that the board should sue to the use of the districts. The money recovered would be held in trust for the districts entitled to the same, according to the apportionment. ’ ’ And so in the instant case, the money recovered in the pending suits would be deposited with the township treasurer, and by him held for the benefit of the several districts in the proportion to which they were entitled to same.

Aside from the authorities, it appears that appellants, by their bill, have not questioned the right of the trustees to bring the suit, but have only challenged their authority to prosecute same by private attorneys, rather than the State’s attorney of the county. They, not having set forth in their complaint that the trustees were not the proper authority to' bring the suits, cannot now raise the question, and the objection is without force.

It is strongly insisted by appellants that the State’s attorney, unless he be disqualified, is the proper official to represent the trustees in such suits, and cite in support of the argument Clause 2 of-section 5, Cahill’s St. ch. 14, H 5, providing, among other things, that the State’s attorney shall prosecute all actions for the recovery of money due to the State, his county, or any school district or road district in the county; also, section 6, Cahill’s St. ch. 14, IT 6, to the effect that if the State’s attorney be disqualified from acting, the Attorney General shall be requested to proceed, and if he fail or refuse to act, then the court in which the action is pending may appoint some competent attorney for the purpose. The appellants urge that appellees were without any legal right to employ private attorneys in the matter, and could only rely therefor upon the State’s attorney, or, if he were disqualified, then their only recourse would be the Attorney General, or some attorney to be appointed by the court, as provided in said section 6; while appellees contend that they, as trustees of schools, had a discretion as to the matter of bringing the suit, and as an incident thereto, the control of the proceedings, and the right to choose the attorney who should institute and prosecute same.

In Ottawa Gas Light & Coke Co. v. People, 138 Ill. 336, where the county board of LaSalle county had employed an attorney, other than the State’s attorney, to bring suit for delinquent taxes, the contention was urged, as is here presented. The court, after referring to said section 5, Cahill’s St. ch. 14, If 5, stated: “We are not disposed, however, to hold that the county board is, by the statute defining the duties of the State’s attorney, denied the power and authority to select and empower any competent attorney to represent the People in beginning and prosecuting suits to recover delinquent taxes. Notwithstanding the statute last referred to, it is manifest that the State’s attorney could not, of his own motion, begin and carry forward proceedings of this character. Whether or not resort shall be had to proceedings at law to recover of property owners the overdue and unpaid taxes levied thereon, rests in the discretion of the county board; and we have no doubt that under the general power of the county board, as the fiscal agent of the county, it has the inherent right to- direct the course of the proceeding, and select the persons and agencies through whom it will act.”

In People v. Straus, 266 Ill. App. 95, the court discussed the opinion in Ottawa Gas Light & Coke Co. v. People, supra, and held, after a review of authorities, that the holding therein declared, had not been overruled, and that same was the law of the State.

Appellants seek to avoid the force of these authorities by contending that in each instance the decision was based upon a statute which conferred authority upon the county board to sue for delinquent taxes. It will be observed that in the pending suit, said section 20, Cahill’s St. ch. 122, ff 20, constitutes the trustees a body corporate, with power to sue. Section 41, Cahill’s St. ch. 122, if 41, requires them to cause all moneys, for the use of the township or the several districts, to be paid to the township treasurer. The only means at their command of exercising such action, or of discharging their duty to the township or the districts, in relation to such moneys, would be by suit for their collection; otherwise the command of the statute would be futile. In these two sections just quoted, is statutory authority for the bringing of legal action to secure funds, due to the township or the districts, that same may be placed in the' custody of the township treasurer, which section 71, Cahill’s St. ch. 122, ff 71, constitutes the only lawful depository therefor.

The parallel between the situation in the cases of Ottawa Gas Light & Coke Co. v. People, supra, and the instant case, is marked. Paragraph 2 of said section 5, Cahill’s St. ch. 14, ff 5, provides .that the State’s attorney shall prosecute all actions for the recovery of revenues, moneys, etc., accruing to his county, or any school district in his county; they therein sued for money due the county as delinquent taxes. The statute just quoted made it the duty, of the State’s attorney to bring and conduct the suit. It was as much the statutory duty of the State’s attorney to conduct the suit for the county seeking to recover delinquent taxes, as to proceed for the collection of funds due to a school district, and yet the Supreme Court held that despite the statute, the county board might, in its discretion, engage another attorney for the purpose, because of its general power as fiscal agent of the county.

The word “fiscal” has been defined as relating to accounts or the management of revenue. Black’s Law Dictionary, p. 502. By applying the definition to section 20 of the School Act, Cahill’s St. ch. 122, fí 20, which commits the business affairs of the school township to the trustees of schools, with power to sue and be sued; to section 41, which requires the trustees to cause the funds of the township and the school district to be deposited with the township treasurer; tó section 38, which obligates the trustees to examine the accounts of the treasurer and make the necessary-orders for their preservation and collection, and which, as we have previously seen, includes both funds of the township and the various districts; and to section 35, which, after providing for the payment of certain costs of administration, directs the trustees to apportion the funds remaining to the various school districts, it seems clear that trustees of schools are the fiscal agents for the business of their townships, of which the funds of the various school districts are a part, and, as such, have the management of such funds and financial affairs, as much so as does the county board with relation to the finances of the county.

From the sections of the statute quoted, and the decisions referred to, bearing upon the question, it appears manifest that the trustees are given control of the school business of their townships; are charged with its transaction, and are empowered to sue for moneys due the township or the school districts; that within the letter and the reason of the rule as declared in Ottawa Gas Light & Coke Co. v. People, supra, they are vested with a discretion in the matter of its collection, and, as therein stated, have the “right to direct the course of the proceedings, and select the persons and agencies through whom they will act.”

We think the trustees, in the instant case, had the right, if they thought it for the best interest of the public which they represent, to employ private attorneys to bring and prosecute the suits in question, and that the chancellor was right in overruling the exceptions to the answer.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Fulton Murphy, J.

license: Public Domain

text:
    Charles R. Groff, Appellee, v. Road District No. 4 of Edwards County, Illinois, Appellant.
    Opinion filed September 18, 1933.
    M. J. White, for appellant.
    Conger & Elliott, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This was an action of assumpsit brought by Charles R. Groff, the appellee, against Road District No. 4 of Edwards county, Illinois, for the contract price of a gravel road constructed by appellee for appellant. The declaration consisted of the common counts and it was stipulated that all pleas available to the defendant would be considered as being filed. By agreement of the parties jury was waived and the cause submitted to the court. A written stipulation of facts was filed covering the greater part of the testimony. From these it appeared that on March 12, 1930, appellee had completed a gravel road for appellant and was entitled to payment therefor in the sum of $817.38. In making settlement appellee was given two orders drawn on the treasurer of the road district, one for $794.13 and one for $23.07. Appellee took the two orders to B. W. Lucas, treasurer of the road district, who was also cashier of the First State Bank of Bone Gap, Illinois. Appellee indorsed the two orders and received in turn two -checks covering the orders, each signed “B. W. Lucas, Clk. Road Dist. No. 4, Edwards Co.” each drawn on the Bone Gap State Bank. Appellee took both checks to his home at Grayville, Illinois, and deposited them to his credit in the Farmer’s National Bank. On the -same day, March 12, 1930, the Farmer’s National Bank forwarded the two checks to Evansville, Indiana. From there they were forwarded to Chicago on March 13th, and in turn forwarded to the First National Bank of St. Louis on March 14th. On the 15th, the checks were sent direct to the First State Bank of Bone Gap. No action appears to have been taken by the Bone Gap Bank until March 18, three days after the checks left St. Louis. On the 18th, the cashier, who was also the drawer of the checks, stamped the checks “Paid” and made transfer on the books of the bank, debiting his own account as treasurer, and mailing to the St. Louis Bank a draft on the First National Bank of Mt. Carmel, Illinois, by way of payment of the two checks and another item in all aggregating the sum of $971.81.

On that date the statement shows the Bone Gap Bank had only $242.09 in cash on hand; and that its deposit in the Mt. Carmel bank was $810. On the evening of March 18, 1930, the First State Bank of Bone Gap closed its doors and turned the control of its affairs over to the State auditor. The deposit ledger shows that on the day the two checks were received and stamped paid, defendant’s account showed sufficient balance to pay the checks. The appellant contends that because of the apparent acceptance of the two checks by the cashier of the Bone Gap Bank, his stamping the same paid and charging them to the account of the drawer, the debt was discharged for the payment of which the checks were given. He relies upon the principle of law providing that when a check is presented, accepted and paid, it is then paid, and the bank cannot thereafter, without the consent of the drawer, make any other disposition of it. The case of American Exchange Nat. Bank v. Gregg, 138 Ill. 596, and cases cited from other jurisdictions fully support such general proposition of law, but in this case there are material facts which take it out of that rule. In the cases cited, the checks were paid while the drawee bank was in a solvent condition, and during the ordinary course of business. In the present case the bank was insolvent, the cashier was also the drawer of the checks and knew of the insolvency of the bank. He issued drafts in payment of the checks which he knew would not be paid for two reasons: First because of the immediate closing of the bank, and second, because the deposit in the Mt. Carmel bank was not sufficient to meet the draft issued and mailed to the St. Louis bank. Under these circumstances there was no valid payment of the checks, and the principle of law urged by appellant does not apply. The appellee had a right to insist that he was still the owner of the checks and that the debt was unpaid. Exchange Bank of Wheeling v. Sutton Bank, 78 Md. 577, 584. The judgment of the circuit court of Edwards county is therefore affirmed.

Affirmed.

Additional Opinion Filed on Petition for Rehearing.

Murphy, J.

— Upon granting the petition for rehearing, the court filed the following additional opinion;

Appellant in its petition for rehearing contends that the former opinion of this court is in conflict with the opinion rendered by the Appellate Court of the Third District in the case of People ex rel. Nelson v. Bank of Rushville, 270 Ill. App. 416, which opinion was filed April 11, 1933. To this we cannot agree. The facts pointed out in the former opinion and which this court relied upon as taking this case out of the general rule therein recognized, also distinguishes it from the Nelson case, supra.

In reference to the other points raised by the petition for rehearing, we have examined the same and find that they have been fully covered by the former opinion.

We adhere to the former opinion and judgment is affirmed.

Affirmed.


author: Mr. Justice Stone

text:
    Charles A. Bartlett, Defendant in Error, v. Philip G. Lauff, Plaintiff in Error.

      Opinion filed September 18, 1933.
    Harry Faulkner and Robert F. White, for plaintiff in error.
    C. W. Burton, for defendant in error.
   Mr. Justice Stone

delivered the opinion of the court.

This is a suit in assumpsit by defendant in error C. A. Bartlett against plaintiff in error P. Gr. Lauff. The declaration consists of the consolidated common counts and a special count, Lauff pleaded nonassumpsit and statute of frauds requiring a promise to answer for the debt of another to be in writing. Bartlett recovered a judgment from which Lauff prosecutes error.

Bartlett owned a real estate and insurance agency. In 1923,-he sold the “business,” including,certain office furniture, to James H. Mann. The contract of sale contained the following provision: ‘ ‘ The said Charles A. Bartlett hereby retains a vendor’s lien on the said within described business and property for the sum of $3,000 balance due on purchase price of same according to the terms and conditions of six certain promissory notes of even date herewith. ’ ’

Possession of the furniture was delivered up with the transfer of the agency.

In 1924, James H. Mann took Cecil Mann in the business, and in a supplemental contract between the plaintiff and the two Mann Brothers there was included a provision similar to that above quoted, purporting to preserve to the plaintiff the above mentioned vendor’s lien.

On October 30, 1930, a balance of $2,000, still owing to the plaintiff on the purchase price, the Mann Brothers, being heavily involved with insurance companies and others, were making a sale of the agency to the defendant Lauff. Bartlett’s version of a conversation between himself and the defendant Lauff on that day at the Mann office is as follows: “Mr. Lauff said to me that he had purchased the agency of Mann Brothers and that he would pay me the $2,000 owing on the original purchase of Mann Brothers from me.” Again, “and he said he had a cashier’s check in his pocket with which to pay me as soon as the papers were ready to make the transfer.” Lauff denied making a statement that he would pay plaintiff the unpaid balance, and his version was corroborated by Mrs. James H: Mann, the only other witness to the conversation.

On October 31, 1930, the day after the disputed conversation, Bartlett went to the office of an attorney where a number of persons, including Lauff, were discussing the sale of the Mann agency to Lauff. He testified that he said there to Lauff: “We were to meet here at Mann Brothers at 9:30 this morning and I was to get my money. ’ ’ Lauff and four other witnesses say that Bartlett, at the time stated, asserted a claim for lien on the business of the Mann agency. Some of these witnesses deny that Bartlett then said any promise had been made to him by Lauff.

After leaving the office where this incident occurred, Bartlett, with an attorney, delivered a written notice and demand for possession of the property of the Mann agency to Mann Brothers.

Later on the same day, Lauff completed the purchase of the business and property of the Mann agency.

James H. Mann testified that Bartlett, in January, 1932, asked him for payment' of interest on the notes given him by Mann Brothers. Bartlett said he did not remember doing so.

Counsel contend for Bartlett, in support of the judgment, that the conversation between Bartlett and Lauff, in the Mann office, on October 30, 1930, constituted a contract under which Lauff was to pay Bartlett $2,000; that the statute of frauds requiring any promise to answer for the debt of another to be in writing to support an action is no bar to Bartlett’s suit, because the promise of Lauff, being made to further an object or advantage of Lauff is an original promise upon a sufficient consideration.

These positions require an examination of the language used, and the surrounding circumstances and action of the parties, to discover whether the essential elements of such a contract were present.

If any contract was made, it was complete in the Mann office on October 30, 1930. The testimony of Bartlett, if accepted, establishes that Lauff knew Bartlett asserted a lien, and that Lauff in terms promised to pay him $2,000. This alone is not enough. It is not enough that parties, circumstances, and possible considerations are present at the same time and place, to make a contract. There must be a common definite meeting of intent of two parties, in selecting or accepting from the elements of contract present, those items essential to a complete contract, as their contract.

Assuming that Bartlett’s claim to a right of lien on tangible and intangible property, delivered by him to another, had sufficient color and substance that his waiver of that claim would constitute a consideration for a contract promise by Lauff, what then was Bartlett to do as his part of the contract? Was he to fore-go his claim for lien? Was he to surrender the notes and contract of the Mann Brothers ? Was he to transfer to Lauff the indebtedness of Mann Brothers to him? Was he to do any other thing, or give any other thing, as his part of the supposed agreement?

A feeling of certainty even, in the mind of the observer, that a party in position to contract would surely agree to terms present in the situation disclosed, does not evoke a contract from a plausible situation for contract. The agreement must actually be made by the parties to the alleged contract. It must be shown that those parties selected and concurred in the terms of contract, or no contract exists. There is here no evidence that Bartlett promised, offered, or accepted, in any such way that a contract between him and Lauff is disclosed by the evidence.

The testimony as to the transaction offered on his behalf as the making of a contract is only that Bartlett told Lauff that Bartlett had a lien on the Mann agency for $2,000; that Lauff said he had a draft for $2,000, and would pay it to Bartlett.

Nothing more can be made of Bartlett’s statement to Lauff, under those circumstances, than a notice to Lauff of Bartlett’s claim for lien. Lauff’s reply that he would give Bartlett $2,000 is a mere declaration of intention. If Lauff carried out his declared intention, any lien claim of Bartlett would be extinguished-. If Lauff did not carry out such expressed intention, the lien of Bartlett would still be effective to the extent it had merit as a claim for lien, and Lauff would have notice of the claim.

For the same lack of expression in the language which is alleged to constitute a contract, there is no consideration. Consideration is not injected into a contract by the fact that one or many considerations are available. An agreed consideration must be selected from the possible considerations present, and laid by the parties in its place in the contract, by words or by contract, or there is no consideration in that contract.

Neither language nor action selected a consideration between Bartlett and Lauff on the occasion here under review, which a court can say was the consideration Lauff was to receive.

The principle controlling this discussion is elementary in the law of contract.

“The chief requirement is that the promise shall be sufficiently certain in its terms to enable the court to understand what the promisor undertakes.” Willis-ton, Contracts, sec. 24, par. 29.

“ . . . it is the essence of a consideration that, by the terms of the agreement, it is given and accepted as the motive or inducement of the promise. Conversely, the promise must be made and accepted as the conventional motive or inducement for furnishing the consideration. The root of the whole matter is the relation of reciprocal conventional inducement, each for the other, between consideration and promise.” Holmes, Common Law, 293, 294.

Confusion in the law of contracts can be avoided only by keeping in mind the idea stressed in these excerpts, that the identification and sure definition, of both the promise and the consideration, must clearly appear in the terms expressed, on the face of the conversation stated between the parties. See also Banning Co. v. California, 240 U. S. 142, 153; Beach on Contracts, sec. 72.

The conduct of Lauff in concluding the purchase of the Mann agency, after October 30, is entirely consistent with his testimony that he made no promise, and had no contract with Bartlett.

The action of Bartlett after October 30 is not consistent with a belief on his part that a new and original contract had been made with Lauff, by which Lauff was substituted for Mann Brothers as his debtor. It is clear from the evidence that he appeared where Lauff and others were gathered on October 31, asserting a claim for lien on the property of the Mann agency. He had not, and. did not then, promise anything, offer anything, forego anything. He later procured an attorney and made a demand for possession of all of the property of the Mann agency, following the property as still his security, in his own mind.

If he had made a contract the day before with Lauff, no conceivable terms of contract between him and Lauff, in the situation existing, would have left him with any right to assert a lien upon the property of the Mann agency on October 31.

It appears to us that the proof does not show a contract between Bartlett and Lauff as claimed on behalf of Bartlett.

“It is not within the function of the judiciary to look outside of the instrument to get at the intention of the parties, and then carry out that intention regardless of whether the instrument contains language sufficient to express it.” 6 R. C. L., pages 835 and 836.

The conclusions here stated make it unnecessary to discuss the other questions presented.

We hold that the motion by Lauff for a directed verdict in his favor should have been granted. The judgment of the circuit court of Madison county is reversed.

Judgment reversed.


text:
    Margaret Canavan, Appellee, v. T. J. Canavan and G. L. Tarlton, Appellants.
    Opinion filed September 18, 1933.
    Pope & Driemeyer, for appellants.
    Kramer, Campbell, Costello & Wiechert, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

Appellee, Margaret Canavan, recovered judgment in the city court of East St. Louis, Illinois, in the sum of $6,000 against her father-in-law, T. J. Canavan, and G-. L. Tarlton, partners in the real estate business. The judgment was for personal injuries resulting from the alleged negligence of her husband, Cletus Canavan, in the operation of an automobile in which they, with others, were riding. The declaration consisted of one count. Said count alleges that appellee on the 22nd day of March, 1931, while in the exercise of due care for her own safety, was riding as a guest in a certain automobile, which was owned by, and in the possession of, and being driven by one of the agents, servants, or employees of, the appellants and that said appellants, by their agent or servant who was operating said automobile, so carelessly, negligently, and improperly, drove and managed the same as to cause it to collide with another automobile, whereby appellee sustained injuries. Appellants pleaded the general issue and filed special pleas denying that at the time of appellee’s injuries they were possessed of, using or operating the automobile in appellee’s declaration described, denying that the operator of the automobile was their agent, servant or employee, or that he was operating, driving or using the automobile as an agent, servant or employee of appellants, and denying that appellee was riding in the automobile as a guest of appellants.

Appellee and her husband, Cletus Canavan, resided in East St. Louis. On the evening of March 22, 1931, Mr. and Mrs. DeBow came to visit them. After they had been there an hour or so, appellee and her husband and Mr. and Mrs. DeBow left the Canavan residence and went to a road house in St. Louis county, Missouri, where they spent the evening. They had some liquor, a chicken dinner and danced until after midnight. They then left the road house to return to the Canavan home. Cletus Canavan was driving a Hudson sedan and DeBow was sitting in the front seat at his right. Appellee and Mrs. DeBow were sitting in the rear seat. While crossing the free bridge from St. Louis to East St. Louis, the car in which they were riding collided with another car headed in the same direction at a double curve on the Illinois side of the free bridge. Appellee testified that when they got to the free bridge the car seemed to pick up speed, but that she hadn’t any idea how fast it was going; that she thought that the car they collided with was standing still, but she couldn’t say for sure; that when her husband saw what was going to happen, he applied the brakes and they grabbed. The bridge was slick and the rear end of the machine skidded around and collided with the other car. DeBow testified that Canavan was driving normally with the exception that he was driving fast for that time of night; that he would say he was driving in excess of 45 miles. It had begun to drizzle. DeBow further testified that after they got to the last turn on the east approach, there was a car in front of them; that he didn’t know whether it was moving or not; that he called Canavan’s attention to the car and he applied his brakes and turned to the left, causing the car to skid; that the right side of the Canavan’s car from the rear door on back to the end of the ear came in contact with the other car which ivas either set in motion or continued in motion and left the scene of the accident.

It appears that on April 6, 1931, this same DeBow made a written statement in which he said that Canavan was driving east over the free bridge about a moderate rate of speed; that Canavan was following an old car which did not have any license plate; that he was not sure about it having lights on it; that Mr. Canavan’s lights were burning bright; that the car had stopped and Mr. Canavan swung to the left and applied his brakes; that he did not have to caution Mr. Canavan about driving too fast or about being careful and neither did anyone else. His explanations of the discrepancies between his testimony on the trial and his version of the accident as contained in the aforesaid statement was that when he made the statement it was obtained in the presence of his wife and Mr. and Mrs. Canavan. He “moderated his statement”; that he did this to save Cletus from embarrassment.

This suit was started nearly two years after appellee was injured. At the time she received her injuries, there was apparently no suggestion made that Cletus Canavan was, at the time the accident occurred, engaged upon any business or mission for appellants. In the trial, it was contended that at the time the accident occurred, Cletus Canavan was engaged in business of appellants. It was after midnight when the collision occurred and appellee and her husband and their friends had been to the aforesaid party at a public road house. T. J. Canavan and G. L. Tarlton, appellants, were in the real estate business in East St. Louis and they employed Cletus as a salesman and collector. His duties were selling real estate, negotiating loans, leases and insurance. The firm of Canavan & Tarlton, which was composed of appellants, owned the Hudson automobile which Cletus was driving that night and which he was in the habit of using on the firm’s business and for his personal pleasure. Cletus Canavan drew a salary from the firm composed of appellants and was allowed his expenses. His expenses were to help in negotiating sales, to entertain people, — among other things, to take them out. Cletus Canavan had been negotiating with DeBow prior to the collision for the sale of a certain lot. He had authority to sell said lot anywhere from $30 to $15 a foot and to arrange terms of sale without reporting back to appellants for a confirmation, of his contract. Appellee and her husband were at home on the Saturday evening on which appellee was injured when Mr. and Mrs. DeBow arrived. The DeBows lived in Granite City and had come to East St. Louis to have dinner with Mrs. DeBow’s mother; they were friends of appellee and her husband. Appellee and Mrs. DeBow had been friends since they were little girls. Appellee and her husband had been in attendance when the DeBows were married. They visited each other and had been out on parties together on several occasions. When the DeBows arrived, appellee was putting her son to bed. Mrs. DeBow joined her while appellee’s husband and DeBow remained in the living room. They had been together an hour when appellee’s husband said to her, “I want to talk to Mr. DeBow about some business, we are going to Van Horn’s, would you and Thelma like to ride over?” DeBow testified that he had gone, on the evening in question, to talk to Cletus Canavan about buying a lot; that Canavan asked him if he would care to go to Van Horn’s in St. Louis and have dinner; that since they had nothing else planned for the evening, they went over with him. On the way they talked about the financial dealings concerning the property in question. They had, however, discussed the matter extensively at Canavan’s home before they started. They were at the road house from 9:30 until after 12 o’clock. They ate and danced together there.

Appellants assign as error the action of the trial court in refusing to direct a verdict in théir favor. They contend that appellee failed to prove that Cletus Canavan was negligent, or if he was, that he was engaged in any business for appellants when appellee’s injuries occurred. They contend further that inasmuch as appellee’s injuries occurred through the negligence only of her husband, and her husband not being legally responsible to her in damages therefor, appellants, whose liability could be predicated only on the ground of respondeat superior, are not, under any circumstances, liable to her.

It is contended first that there is no evidence of negligence on the part of Cletus Canavan which warranted the trial court in submitting the case to the jury. With this position we cannot agree. The circumstances of the collision of the two cars as detailed by this evidence were circumstances which called for greater care and attention on the part of the driver. He was leaving the populous part of the City of St. Louis and entering the populous part of the City of East St. Louis. He was on a bridge, and rain was falling; according to the testimony he was driving at from 40 to 45 miles per hour immediately before the collision in question occurred. It would seem that such rate of speed does not indicate that the driver of the car, under such circumstances, is giving due consideration to the question of his safety and the safety of those riding with him, having regard to the traffic and use of the way. Furthermore, as a driver of an automobile with experience, as the evidence indicates Cletus Canavan was, he must have known that on a road such as the free bridge road, an automobile would skid if it became necessary to put on the brakes as was done in this case. He must have known, in the exercise of reasonable care in that behalf, that he might be called upon at any time to use his brakes to prevent just such a thing as did occur. We are of the opinion, were this case to be determined on the question of negligence or due care on the part of Cletus Canavan, the court would have been fully warranted in allowing the case to go to the jury.

There are, however, other important questions in this case if we assume for the sake of argument that Cletus Canavan was guilty of negligence as found by the jury.

The next and very important question is the question whether Cletus Canavan at the time and place of the injury in question was either agent or servant of appellants, then and there engaged in his duties as such agent or servant in respect to the particular transaction out of which the injuries arose. We have searched this record diligently for anything amounting to proof which indicates that Cletus Canavan was so engaged at the time of the injuries in question. Somewhere between the time that Cletus Canavan met the DeBows, on the evening in question, the two men talked something about the financial arrangement for the purchase of a lot. We must rely upon this and this alone to support such contention. On the other hand, there is much evidence and many circumstances which indicate that the parties, all of them on the night in question, were engaged purely in an excursion of pleasure. That seemed to be the predominant idea in the minds of all of them. There is no conceivable way by which this joy ride to the night club in Missouri could have been or was a part of any business transaction in which appellants were interested. We see no connection between the duties of Cletus Canavan as an employee of appellants and the joy ride which is described in the record in this case. The court on the motion for a directed verdict, of course, could not weigh the evidence. However, to our minds, the facts and circumstances in evidence upon which appellee relies to establish that this trip was made by Cletus Canavan on the business of appellants as an agent of appellants, do not amount to proof that the trip was so made. On the contrary, when considered in the light of the whole proof, these circumstances fall consistently into line with the affirmative proof that Cletus Canavan, appellee and the DeBows, were engaged solely on a pleasure event personal to them, with which Cletus Canavan’s employment by appellants had no causal relation.

We are constrained to the opinion that the trial court was not warranted in submitting this case to the jury, there being no obligation which appellants owed to appellee except upon the theory of respondeat superior.

The trial court erred in not instructing the jury to find the appellants not guilty.

Having arrived at the foregoing conclusion, it is unnecessary for us to discuss here the other question raised by appellee, namely, that Cletns Canavan, not being under the law subject to be sued by his wife for injuries accruing to her because of his negligence, therefore, his superiors in this case, appellants, could not be sued.

Looking at this case in its most favorable light to appellee we are unable to say that appellants owed any duty to her under the circumstances.

The judgment of the city court is reversed.

Judgment reversed.


text:
    Mills Davis, Appellee, v. City of Mt. Vernon, Appellant.

      Opinion filed September 18, 1933.
    William T. Pace, City Attorney, for appellant ; L. H. Jonas, of counsel.
    Prank Gr. Thompson and Neil H. Thompson, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

Mills Davis, appellee, obtained judgment against the appellant, City of Mt. Vernon, on his suit in assumpsit to recover salary as policeman in Mt. Vernon, for the period from November 15, 1931, to October 15, 1932. The City of Mt. Vernon appeals.

Appellee was appointed policeman in May, 1931, gave a bond, took oath, and was paid for the period to November 15, 1931.

Shortly before November 15, 1931, the city council of Mt. Vernon adopted a resolution directing the mayor to drop a number of city employees, including two policemen from the city police force, because of inability of the city to pay them. The mayor discharged appellee, as of November 15, 1931, and delivered to the city clerk, on November 16, a written statement of his action, giving as his reason the lack of city funds to pay those removed from their positions.

Appellee did not appeal to the city council, nor take any steps to assert a further right to the position, nor file a new bond and take a new oath, and the council did not disapprove the removal of appellee. Appellee did not serve as policeman after November 15, 1931.

It is insisted for appellee that by the ordinance of appellant city he was the holder of a city office, as distinguished from an employee; that he held for a term of two years; that no power to remove him existed in the mayor except for misconduct of appellee; that the mayor did not report his discharge of appellee to the city council, and that this failure made the removal of appellee a nullity; that while the council might by resolution abolish the office held by appellee at the end of the city fiscal year, April 19, the resolution adopted was not a destruction of the office held by appellee. Upon this basis it is insisted that appellee could treat the action of the council and the mayor as a nullity, and sue in assumpsit for the salary of policeman of Mt. Vernon, accruing for the term of the office, as an emolument of the office of policeman of the city.

Even though it be assumed that the ordinances of Mt. Vernon created the office of police patrolman, we do not agree that appellee could treat his removal by the mayor as a nullity.

By section 7 of Article 2' of the Cities and Villages Act, Cahill’s St. ch. 24, H 21, the mayor has power to remove “whenever he shall be of the opinion that the interests of the city demand such removal.” The removal is complete upon the action by the mayor. The officer is “restored” to his office by the statute, after he is removed, if either the mayor fails to file a notice with the city clerk, or if the council by a two-thirds vote disapproves the removal, but then only on filing a new bond and taking a new oath. While the mayor is directed to report his act of removal to the council, the statute does not provide that the officer is restored to office by a failure of the mayor to make such report. Furthermore, the statute is fairly open to a construction,that filing a report with the city clerk is the making of the statutory report to the council. The delivery to the city clerk of the required report, being delivery to the officer who has the duty to file, is compliance with the requirement of filing with the city clerk.

Upon the mayor discharging appellee, the severance of appellee from the position of police officer was immediate and complete. Hutchins v. Heffran, 56 Ill. App. 581, on p. 585; s. c., 160 Ill. 550, on p. 554.

Appellee had the right to apply to the city council for restoration to his office. He could proceed to establish his right to hold the office. His removal and the reason for it were shown by public records. The issue was fairly presented to him. He did nothing.

He must establish his right to the office, by litigation or otherwise, before he can recover salary. City of Chicago v. People ex rel. Gray, 210 Ill. 84; Gersch v. City of Chicago, 192 Ill. App. 190; Michels v. McCarty, 196 Ill. App. 493.

Appellee insists that City of Chicago v. People ex rel. Gray, supra, is not to this effect and does not support the Gersch case, supra, and that if it were to this effect, People ex rel. Mosby v. Stevenson, 272 Ill. 215, overrules and supersedes it.

In the Gersch case, the Appellate Court says (192 Ill. App. 190, on p. 192):

“That an officer of the police force wrongfully discharged cannot recover his pay accruing, as he claims, after his discharge, while he ‘stands discharged,’ hut must first secure his reinstalment by appropriate litigation or otherwise, is a proposition directly laid down by our Supreme Court in City of Chicago v. People ex rel. Gray, 210 Ill. 84.”

The case of G-ray seems to us to justify the foregoing citation, by this language (210 Ill. 84, on p. 89):

“The petition was obnoxious to a demurrer. It sought two kinds of relief, one of which must be obtained before there could be a clear legal right to the other. Relator stood discharged from the police force of the city of Chicago. Until he was re-instated and his name restored to the roll he was not, under any circumstánces, entitled to maintain mandamus requiring the city or its officers to pay him. If the facts-averred by the petition are true, relator was entitled to be re-instated, and the question of his right to the salary could then be litigated; but it is manifest that a re-instatement must precede any attempt to collect the salary by mandamus. ’ ’

People ex rel. Mosby v. Stevenson, supra, concerns a petition for mandamus under the civil service statute, to compel the payment of salary to him. Woods, secretary of state, having no statutory power of discharge, assumed to discharge Mosby, who promptly applied for relief to the civil service commission, which held that the act of the secretary was without authority, thus establishing the right of Mosby to his position.

Further, the statute there involved is entirely different from section 7 of Article 2 of the Cities and Villages Act, Cahill’s St. ch. 24, jf 21. No case touching this section is cited by the Supreme Court. This section was not present to the mind of the court in that case, and we think the Stevenson case does not impair the authority of the cases cited above.

"We have said that reinstatement to office, by mandamus or otherwise, is a condition precedent to suing for salary. Another requirement in that connection is demanded by sound public policy. Appellee’s position necessarily assumes that appellee, claiming to be a public officer, may sit by without assertion of a claim, until the term of office has expired, and then recover the salary for the term from a subdivision of government. In the present case appellee concedes that the city council had power to terminate by resolution the office involved and the action of the council clearly indicates both an intention to discontinue it, and a necessity for such discontinuance. Appellee had notice of the intention of the council, but the council had no notice of appellee’s intention, and could fairly assume that appellee regarded the action of the council and the mayor as final. If warned that appellee expected to hold the city liable, the council could have acted to protect the city.

This situation makes this case a special instance proving the public need for the established rule that no delay can be permitted in the assertion of a claim of right to public office by a claimant. It is distinctly injurious to the public interest to permit one discharged from office to make no attempt to correct an alleged or actual error in his discharge, until the term of office or a large part of it has expired, and then make claim for salary. Six months has been held to be an unreasonable delay in the assertion of his claim by a discharged police officer, and to constitute a defense to an action of mandamus. People ex rel. Qualey v. City of Chicago, 203 Ill. App. 191.

As we hold that appellee must establish his right to occupy the office before suing for the salary of the office, and must proceed diligently to establish that right, the judgment of the circuit court herein must be reversed.

Judgment reversed.


author: Mr. Justice Huffman

text:
    Alexander Lumber Company, Appellee, v. Frank E. Kellerman et al. Eli Metcoff, Intervening Petitioner, Appellant.
    Gen. No. 8,665.

      Opinion filed September 20, 1933.
    Rehearing denied October 11, 1933.
    Harold V. Snyder, for appellant.
    Hadley, Weaver & Woodward, for appellee; Charles W. Hadley, Palmer Leren and William C. Atten, of conns el.
   Mr. Justice Huffman

delivered the opinion of the court.

The appellee, on September 20, 1930, filed its bill pursuant to the Liens Act (Cahill’s Ill. Rev. St. ch. 82), to foreclose its lien against certain premises, which had belonged to Frank E. Kellerman and wife. On or about April 14, 1928, Frank E. Kellerman and wife mortgaged the said premises for the sum of $5,000, making the Chicago Title & Trust Company trustee in the trust deed given to secure the payment of said loan. The note was made payable to bearer. Appellee on the 18th day of April, 1928, entered into a contract with Kellerman and wife to furnish lumber and building material for the building of a residence upon the said premises. Following the performance of this agreement by appellee, it filed its statement of claim for lien, pursuant to the statute, on February 15, 1929. The above suit to foreclose lien by appellee, filed on September 20, 1930, resulted. Kellerman and wife in the meantime sold the premises to Boy E. Parson and Anona C. Parson, who had full knowledge of the rights of appellee. Appellee made Kellerman and wife, Chicago Title & Trust Company, the Parsons and many other persons defendants, including the unknown holders and owners of the above note dated April 14, 1928, secured by the trust deed from Kellerman and wife to the Chicago Title & Trust Company, and the unknown owners.

Appellant, Eli. Metcoff, before the taking of testimony in this case, and on August 14, 1931, secured leave of court to be made a party defendant and to file his intervening petition to the bill of complaint. In his petition he sets up that he was then the owner of the $5,000 note, given by Kellerman and wife, payable to bearer, which had been secured by the trust deed to the Chicago Title & Trust Company, and the interest notes therewith attached. It appears from appellant’s testimony that he became the owner of the note and four interest coupons, in the first part of July, 1931; and that he purchased them from the Beliance State Bank & Trust Company.

The cause was referred to a master, who heard the testimony and found that the sum of $2,325.61 was due appellee; and that the fair cash market value of the premises had been enhanced by the lumber and building material furnished by appellee, in a sum of not less than $3,000; and that appellee was entitled to receive the said sum of $2,325.61, with interest. The master further found that a credit item of $1,000 as shown by the statement of claim for lien as previously made by appellee was erroneously entered and was never in fact paid to the appellee, and that no one had been prejudiced by such error and that the statement of claim for material furnished as made by the appellee was correct and sufficient to continue in full force and effect its lien for the full amount allowed by the master. The master found that the claim of the intervening petitioner, Eli Metcoff, appellant herein, was superior and paramount to the claim of appellee. Appellee filed its objections to the report of the master, which were overruled by the master and stood as exceptions in the trial court. The chancellor sustained the exceptions of appellee and by the decree herein, found that appellee’s claim was superior to that of appellant; and the appellant now prosecutes this appeal.

As previously stated, appellee filed its bill of complaint to foreclose on September 20,1930. The parties defendant are numerous, and among others were the unknown holders and owners of the note which appellant now owns. The summons issued upon the filing of the bill and before the filing of an affidavit of unknown owners and of nonresidence. Service was had on the named defendants. On December 3, 1930, appellee filed an affidavit as to unknown holders and owners of the note herein involved, who were made parties defendant, and all other unknown owners, and an affidavit of nonresidence. Publication was thereafter had for service upon such parties defendant, in the manner provided by statute, the first publication thereof being had on December 5, 1930.

The cause was heard at the October term, 1932, of the circuit court of Du Page county. Appellant urges that the failure of appellee to file an affidavit of unknown owners and of nonresidence prior to the filing of its bill of complaint, is jurisdictional, and fatal to appellee’s rights as against appellant. It could only have been jurisdictional as to the person of appellant. Where the court has jurisdiction of the subject matter, jurisdiction of the person may be conferred. Rabbitt v. Weber & Co., 297 Ill. 491 ; People ex rel. Baumgarten v. Krueger, 253 Ill. App. 372. Appellant filed his petition with the court to be made a party defendant to the proceedings and for leave to file his intervening petition, which leave was granted him. He thereupon filed his intervening petition setting up that he was the owner of the Kellerman note as aforesaid, and entered his general appearance in said cause for all purposes and engaged in a full hearing of the bill of complaint upon the merits. He did not at that time raise any question as to jurisdiction. In entering his general appearance and going to a full hearing upon the merits of the cause, he is precluded from now urging lack of jurisdiction because of any alleged defect in the obtaining of service upon him.

Appellant urges that an affidavit of unknown owners and an affidavit of nonresidence are both necessary under the statute. We concur in this. Appellee filed both affidavits, and they were exhaustive and much in detail. Appellant having voluntarily entered his general appearance in the court below, and proceeded to a full hearing of the bill upon the merits, submitted himself to the jurisdiction of the court, and cannot now be heard to complain.

The evidence shows that appellant became the holder and owner of his interest in this property some eight or nine months after suit was brought and while this action was pending. By purchasing pendente lite, he makes himself a.party to the suit. Weber v. Kemper, 320 Ill. 11, 19, 20. Paragraph 12 of Cahill’s St. ch. 82 (Smith-Hurd Rev. St. 1929) provides that the rule of practice and proceeding shall be the same as in chancery, except where otherwise provided. Section 1 of the Chancery Act, Cahill’s St. ch. 22, If 57 (Smith-Hurd Rev. St. 1929) provides among other things, that every suit in equity affecting or involving real property shall from the time of the filing of the bill of complaint be constructive notice to every person subsequently acquiring an interest or lien in the property affected, and the complainant is given a period of six months after the filing of the bill to cause notice to be given the defendants, either by service of summons or by publication, and that during such period, the pendency of such action shall be constructive notice upon all persons who have acquired an interest or lien in the property affected, subsequently to the filing of the bill. Appellee completed its service upon all defendants soon after the filing of its bill of complaint, and ]orior to the expiration of six months. It would appear that by virtue of section 1 of the Chancery Act, Cahill’s St. ch. 22, H 57, the filing of appellee’s bill of complaint was constructive notice to all persons thereafter acquiring an interest in the premises involved.

Appellee, in its bill to foreclose, claimed a total due of $2,674.64, including interest, and set out a credit of $75.88, claiming a balance due of $2,598.76. Appellee’s exhibit “A” contained an itemized list of all the materials furnished, with the kind, price, quantity and dates of delivery, showing the total of such materials to be $2,674.64, as aforesaid. The statement for claim for lien as originally filed by appellee contained an erroneous credit entry of $1,000, which the undisputed evidence showed to have been an erroneous credit, and the master and trial court so found. The evidence shows that this credit was a clerical error and should not have been given Kellerman. Appellant urges reversal because of this credit. The itemized list as attached to the claim for lien was correct, and it was found that the same was sufficient to continue in full force and effect the lien of appellee for the full amount claimed; that the contractual relation of none of the parties had changed since the filing of the statement of lien and that no one had been prejudiced because of said error. Section 7 of the Liens Act., Cahill’s St. ch. 82, H7 (ch. 82, Smith-Hurd Bev. St. 1929) makes provision that no lien shall be defeated as to the proper amount because of an error or overcharge on the part of any person claiming a lien, unless it appear that such error or overcharge is made with intent to defraud. There was nothing about this item to prejudice or affect appellant’s rights in any way. It was admitted to be a clerical error in the said statement of claim for lien, and is not sufficient to defeat the lien when the items as given in the statement were correct. Velde v. Schrock, 253 Ill. App. 274.

The court in its decree found that there was due appellee the total sum of $2,737.51, and interest at five per cent from May 5,1932, the date of the master’s report; and that there was due to appellant the sum of $5,853.75 with interest at five per cent from the above date. No finding was made of the value of the premises prior to the improvements being placed thereon, nor of the value of the premises after the improvements had been placed thereon. The decree provides for payment to appellee and to appellant within three days, and that in default thereof, the premises be sold, and that from the sale of the premises the appellee shall first be paid in full, before the appellant shall receive anything. This is in direct contravention of the provisions of sections 16 and 19 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, fifí 16 and 19 (SmithHurd Rev. St. ch. 82, 1929). It was error to decree that the appellee should be paid the entire sum due it, without recognition of the claim of the appellant under his rights as the holder of a prior incumbrance upon the property. The rights of appellant were prior to those of appellee as to the value of the premises before the improvements were placed thereon. From the state of the record it is impossible to determine the value of the premises prior to the improvements, or the value of the premises after the improvements. The only finding made was that the value of the improvements exceeded the sum of $3,000. This is not sufficient. As between a prior mortgage holder and a mechanic’s lien claimant, under the statute, the former is entitled to satisfaction out of the land, and the latter out of the building. On a sale of the entire premises under a proceeding to enforce a mechanic’s lien, the proceeds of the sale represent and stand in the place of the land and the building, and the parties have the same proportionate share in the proceeds that they had in the property before it was sold. Bradley v. Simpson, 93 Ill. 93; Albrecht v. Buelow, 191 Ill. App. 481; Fair Play Development Organization v. Sarmach, 263 Ill. App. 593.

There is no way of ascertaining before the sale of the premises if the proceeds therefrom will be sufficient to pay both appellant and appellee. Where land is sold under a decree for mechanic’s lien, upon which there is a prior incumbrance by mortgage, and the proceeds of the sale are not sufficient to pay both claims as found by the decree, they will be apportioned, and the mortgagee will take such a share of the proceeds of the sale as the value of the property, before the improvements were put upon it, bears to the total value of the property after the improvements were made. The court erred in decreeing that appellee should be first paid in full. Appellant’s rights were superior to appellee’s in the land itself, and he is entitled to his protection thereof.

For the reasons stated, the decree of the circuit court is reversed and remanded for further proceedings in harmony with the views herein expressed.

Reversed and remanded.


text:
    John J. Doyle and John T. Fleming, Appellants, v. Bion H. Barnard et al. (John Coughlin et al.), Appellees.
    Gen. No. 8,671.
    Opinion filed September 20, 1933.

      Egbert L. Kemler, for appellants.
    Alschuler, Putnam, Flannigen & Johnson, for appellees; W. C. O’Brien and Edward F. Streit, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This was a proceeding in chancery to set aside a release deed, which had been executed by a trustee, and to foreclose the trust deed and two of the notes secured thereby. The facts are as follows: On August 24, 1931, Bion H. Barnard executed a trust deed together with four notes marked “A,” “B,” “C,” and “D,” note “A” being for $1,000, and notes “B,” “C” and “D” for $500 each. The trust deed and notes were in favor of one J. B. Magruder. The trust deed was given upon certain residence property in the City of Aurora. The First National Bank of Aurora was named as trustee with provision that upon its failure or refusal to act, the person who was the acting recorder of deeds"of said Kane county should be the successor in trust. The trust deed was recorded in the recorder’s office of said county on August 25, 1931, by Charles Doetschman, recorder.

The appellants herein, John J. Doyle and John T. Fleming, both reside in the City of Chicago. On September 22, 1931, they sold or traded to the said Magruder an automobile and he delivered to them notes “B” and “C” for payment, or part payment, therefor. Each of these notes was in the sum of $500. Some time subsequent to this transaction, Magruder and Barnard issued two additional notes, marked “B” and “C” to take the place of the two that had been negotiated to the appellants. The new notes were identical in substance and form with the two notes traded appellants.

■ Magruder went to the First National Bank of Aurora in the latter part of 1931, and requested Mr. Dillenburg, who was the trust officer of said bank, to execute a release for the trust deed involved herein. The trust officer of the bank did not know Magruder and did not find that this transaction was noted upon the records of the bank or that the bank had accepted such appointment, and refused to act. He then wrote a letter, addressed to the recorder’s office of said county, advising the recorder that the bank refused to act in this matter. Subsequent to this, Magruder and Barnard appeared in the office of the recorder of deeds of Kane county, and Magruder had in his possession the aforesaid trust deed and the four notes marked “A,” “B,” “C” and “D” answering the description as set out in the trust deed, and delivered these to the recorder and requested that a release be issued for the trust deed. Magruder marked the trust deed and each note, “Cancelled and paid,” upon its face, signed his name thereon, and stated that he was the owner of the notes at that time. The comparison of the notes and trust deed was made and the cancellation examined, whereupon a release deed was duly executed.

Following this, Magruder effected a sale of said premises to John Coughlin and wife, appellees. Coughlin and wife employed Charles McNett, an attorney at law who has practiced in the City of Aurora for more than 40 .years, has been master in chancery, was at that time attorney for a building and loan association, and who had had experience in the transfer of real estate and in the execution and release of mortgages, and with the examination of abstracts and titles, to represent them in this transaction. The evidence shows that their attorney examined the abstract of title, the canceled trust deed and notes and the release deed as made and recorded.

After these matters had been attended to by the attorney, and after Magrnder, Barnard, and Coughlin had met at his office, and he had advised Coughlin that the title was clear, Cougffilin thereupon paid $2,500 to Magruder in the office of the attorney, Charles McNett, and received from Magruder a deed to said property, which was promptly recorded. The deed to Coughlin was made on November 9, 1931. After this transaction, Magruder and Barnard absconded.

It does not appear in the evidence when appellants became cognizant of the transaction above referred to, with reference to the release of the trust deed and the purchase of the property by the appellees. The appellants brought their bill to the September term, 1932, of the circuit court of Kane county, seeking to have the release deed declared void as against them; and the amount due them upon their notes decreed a prior lien upon said premises; and that the premises be sold under the trust deed to satisfy the liens, attorney fees and costs of the appellants. The trial court dismissed appellants’ bill for want of equity, from which decree appellants prosecute this appeal.

Appellants urge for reversal that the trust deed was sufficient to put appellees upon notice. They further urge that notes “B” and “C” were different from notes “A” and “D”; that the release deed was not executed by anyone authorized to do so; and that the co.urt heard improper testimony. Appellants rely upon the case of Kennell v. Herbert, 342 Ill. 464. There are many distinguishing differences between this case and the one above relied upon by appellants.

In the Kennell case, Kennell filed his bill against Herbert, and others, to foreclose a trust deed. Herbert and wife had secured a loan from a copartnership, consisting of Sam T.. Peterson, Walter G. Bippberger and Sophia Bippberger, doing business as Charles Bippberger Company. Herbert and wife executed their trust deed and four notes for the loan from Bippberger Company. The trust deed described the notes, amounts, when payable, and made Peterson trustee.

Subsequent to this, Herbert and wife undertook to convey the incumbered property to 'one Kruse. An abstract of title was delivered to Kruse, and upon being examined by his attorney, disclosed the trust deed standing against the property. Herbert went to see Peterson, who was named in the trust deed as trustee, and Peterson stated to Herbert that he would not release the trust deed unless Herbert paid the balance of the money due thereon, or executed a trust deed on other property. Thereupon Herbert executed a trust deed on other property to Peterson as trustee, and Peterson executed a release deed to the property in question, and delivered the release deed to Herbert, who in turn delivered it to the attorney for Kruse, in whose hands it remained for about four years before it was filed for record.

At the time Herbert executed the second trust deed to Peterson, Peterson told Herbert that he did not have the trust deed and notes to the property being-traded, but promised to get them and either deliver them to Herbert or destroy them. Herbert and wife conveyed the property to Kruse and wife. Kennell was the owner of the trust deed and notes upon the property first conveyed by Herbert and wife to Peterson, and now being conveyed to Kruse. Kennell had no knowledge that a release of said trust deed had been made by Peterson. He continued to receive the interest money upon the notes, as it became due, from Peterson, by checks upon the Rippberger Company.

After the notes became due, Kennell made several demands upon Peterson, the trustee, and Rippberger, at the Rippberger Company Office, for the payment of his notes, under his trust deed. The court states on page 468 of its opinion that the sole question in that case was the validity of the release of the trust deed by Peterson, as trustee. It will be observed that in the above case the trustee did not have possession of the trust deed or of the notes secured thereby, and that they were at all times in the actual possession of Kennell ; and that the trustee executed the release without having such possession, and without any notice of such release being given Kennell.

The court further states on page 469 of its opinion: “If one pays to the trustee named in a trust deed the debt secured thereby before maturity which the trustee is not authorized to receive, and the trustee releases the trust deed but does not have possession of the notes, which are owned by and in the possession of a third party, the person so paying is chargeable with notice of the trustee’s want of power to receive payment.” And further, “The inference of authority to receive payment arises from the possession of the trust deed and notes by the person to whom the payment is made, the inference of authority is founded upon such possession, and it does not exist without such possession.”

Kennell became the owner of the trust deed and notes immediately after their execution, and held the same continuously thereafter in his possession. The release of the trust deed, which the trustee undertook to make, was not recorded until about four years after its execution. The trustee did not have authority to receive the principal prior to maturity, without the consent of the owner and holder of the notes and trust deed. The court held that the release of the trust deed as between Kennell and Herbert was invalid, because when Herbert went to see Peterson about the matter, and delivered to Peterson a trust deed on other property, Peterson told Herbert he did not have the trust deed and notes on the property about to be conveyed by Herbert, but promised to secure them; and the court holds that these facts were sufficient to put Herbert upon inquiry.

The court also held that the release made by Peterson was invalid as between Kennell, who held the trust deed and notes, and Kruse, who had purchased the property from Herbert, because when Kruse had his attorney examine the abstract of title to the property which he was about to buy from Herbert, he was ad-' vised by his attorney of the existence of the trust deed and notes and he went ahead with the purchase of the property from Herbert upon securing from the trustee a mere release of the trust deed, without the surrender of the notes or trust deed. The attorney advised that the release was necessary, but paid no attention to the question of the surrender of the trust deed and notes. The court held that this was a warning to Kruse and that a mere release of the trust deed without the surrender of the notes might not be sufficient. The court held that Kruse occupied no better position than Herbert and that the release was invalid as between them and Kennell, holding that when Kruse purchased the property, knowing there was a trust deed and notes against it, and accepted a bare release of the trust deed without also requiring a surrender of the notes, he did so at his own peril.

We do not believe that the facts in the above case are parallel to the facts existing in the present case. In this case, Magruder, the holder of the trust deed and notes, appeared before the trustee in person with the trust deed and notes in his possession, and advised the trustee that full payment had been received by him and instructed the trustee to make and issue a release deed.

The trust deed and the notes were executed in favor of Magruder, and the trustee had no information that Magruder was not still the true legal holder of all of said notes. It is true that two of the notes then in possession of Magruder were spurious,.but they bore the genuine signature of Barnard, and they fit the description as set ont in the trust deed; thus there was no way in which the trustee could detect that the notes were spurious.

Appellants complain that the two spurious .notes had the blank spaces filled in with a typewriter with type different from that used in the other two notes. It appears upon examination of the original instruments that the type of the typewriter used in filling out the two spurious notes was slightly smaller than that of the typewriter used to fill in the two original notes, but the type was the same style and same form, and the evidence shows that the difference in the size was so slight that it was not noticeable except upon the closest inspection made for the purpose of determining that one thing. Notes and papers relative to a transaction are not always prepared upon the same typewriter or by the same person. The signatures of Barnard were.genuine on each of the four notes delivered by Magruder to the then acting trustee, the recorder of Kane county.

We find nothing in the evidence to put the recorder upon inquiry or in any way to arouse his suspicion. Neither do we find anything in the evidence to put the appellees, Coughlins, or their attorney, upon inquiry or suspicion. The attorney testified that he discovered from the abstract that the trust deed and notes had issued upon said property, and that he examined the same as delivered to him marked “Paid and can-celled, ’ ’ by the cestui que trust himself; that he examined the notes; that he examined the release deed by the county recorder; that he found everything in order and that the instruments were recorded, and the transaction was closed.

The facts in the case now before this court are very similar to those in the case of Vogel v. Troy, 232 Ill. 481. In the Vogel case, one Huida Vogel was the owner of a $2,000 note, secured by a trust deed of certain real estate, which trust deed and note had been issued by Emeline Troy and her sons. John Pfeiffer was named as trustee in the trust deed. Huida Vogel held the note, but Pfeiffer retained possession of the trust deed.

Subsequent to .this transaction, the property was sold to Elizabeth Lighthall and a warranty deed made to her by the Troy family for said premises. Mrs. Lighthall knew there were certain incumbrances upon the property and understood that they were to be paid from the purchase money advanced by her.

The trustee, Pfeiffer, told the Troys that the original $2,000 note had been lost and had them execute to him a new one, which corresponded substantially to the old one. The trustee then executed a release deed from himself to the Troys for the $2,000 loan under the trust deed, and the abstract was brought down to date, showing the title to be free and clear of the said incumbrance.

The purchase money had been deposited by Mrs. Lighthall with the Chicago Title & Trust Company. The trustee, Pfeiffer, represented to the agents of Mrs. Lighthall that he was the owner of the $2,000 note and upon payment of the same, the spurious note which he had secured from the Troys and the trust deed were canceled and surrendered and the release deed was executed; and Pfeiffer converted the $2,000 to his own use.

The court in that case recognized the rule in equity that a release unauthorized by the terms of the trust deed or without the consent of the cestui que trust will have no effect as between the original parties or as to subsequent purchasers with notice. It was urged in that casesthat Mrs. Lighthall had notice that Huida Vogel was the owner of the $2,000; note, or notice of sufficient facts to put her upon inquiry, which, if investigated, would have disclosed that the trustee, Pfeiffer, was not the true owner of the indebtedness secured by the trust deed, and that therefore he had no right to release the same.

In support of this, it appeared that Mrs. Troy had told Mrs. Lighthall that there were two incumbrances upon the property — one for $1,000, and one for $2,000. The trust deed ran to John Pfeiffer. The abstract of title for the premises in no way disclosed that Huida Vogel had any interest in the indebtedness described in the trust deed. Pfeiffer had in his possession the original trust deed and a $2,000 note, which bore the genuine signatures of the Troys and substantially corresponded with the note described in the trust deed. Mrs. Lighthall did not rely upon herself to close the deal, but relied upon one Lang, an experienced real estate man, and the Chicago Title & Trust Company.

Following a detail of the above facts, the court in that opinion stated: “Mrs. Lighthall or her agents were only required td do what a reasonably prudent person would have done under like circumstances to ascertain whether there was any. infirmity in the release of Pfeiffer.” It is further stated that John Pfeiffer was trustee and that Huida Vogel had “failed in any way to place anything of record which showed that she had any interest in the indebtedness secured by said trust deed, and it seems apparent that Mrs. Lighthall did all she reasonably could do to protect herself from the secret lien of Huida Vogel at the time she purchased said property.” It is further stated: “And Pfeiffeh appeared, at the time the deal was closed, with the original trust deed, and what apparently was the original $2,000 note and interest notes, in his possession and claimed to own them. The loss caused by the misconduct of John Pfeiffer must be borne either by Huida Vogel or by Mrs. Lighthall, and we think it clear Mrs. Lighthall acted in the utmost good faith and did all that a reasonably prudent person could do to secure a perfect title to said premises at the time she purchased the same, and that her rights are superior to those of Huida Vogel and should be protected. ’ ’

Another point urged in the Vogel case for reversal is set out in the opinion as follows: “It is urged that the notfes did not correspond with the notes described in the trust deed. There was a difference between the two series of notes in this: that the last series was signed by the wives of Harry L. and Ernest Gr. Troy, which was not the case with the first series, and three of the interest notes were not correctly dated. The notes presented by Pfeiffer corresponded substantially with the notes described in the trust deed. They were presented by Pfeiffer with the original trust deed and as the notes described in that trust deed. Mrs. Light-hall and her agents, who were experienced business men, acted upon the theory that they were the original notes of the Troys, and in so doing did what we think a reasonably prudent business man would have ordinarily done under the same circumstances. The scheme of Pfeiffer was one well calculated to deceive, and we think Mrs. Lighthall took every precaution to protect her rights. In Lennartz v. Quilty, supra, on page 180, it is said: ‘ The recording laws are designed to afford protection to parties acting in good faith and relying upon them, and in the absence of any notice or ground of suspicion it is not the duty of a purchaser to obtain an admission of payment from the holder of a note secured by a trust deed regularly released of record. ’ ’ ’

After a careful examination of the facts in the case before us, and in considering the same with respect to the facts that existed in the above Vogel case, we are of the opinion that the facts in the Vogel case and the facts in this case are very similar, and that the rules of law as applied in the Vogel case are applicable and should apply to the case at bar.

The appellees, Coughlins, did everything a reasonably prudent person could be called upon to do to protect their rights and interests at the time of the purchase of the property in question. They employed an experienced attorney of over 40 years’ practice, who gave the greater part of his time to transactions of this nature and character, and the record title to this property appeared clear and free of any lien or incumbrance because of the trust deed that had been executed by the said Barnard to the said Magruder.

We find nothing from the evidence about the transaction in securing the release of the trust deed from the recorder of Kane county to in any way arouse the suspicion of said recorder. The signatures to the spurious notes were genuine and the notes corresponded to the notes originally issued, except for a slightly smaller type, but there were four notes and no reason to believe that each note was to have been written upon the same typewriter.

Nothing appeared at any place in the transaction to give the appellees, Coughlins, any notice that appellants held any notes secured by this trust deed. A purchaser of real estate should be able to rely upon a clear and regular title of record and should be protected therein, as against all secret adverse titles or liens, of which he had no notice. It has been held that mere assignment of notes secured by mortgage will not protect the assignee of such notes against persons who have acquired clear record title without notice of such assignment; and that an assignee of notes secured by mortgage may protect his equitable lien on the mortgaged premises, by taking and putting upon record an assignment, so as to give notice of his interest. Ogle v. Turpin, 102 Ill. 148.

We do not believe the rule as urged by appellants for the reversal of this case should be extended to the appellees, who acted in a careful and prudent manner, employed a capable and experienced attorney, and who completed the transaction without notice of any infirmity to put them upon inquiry.

Appellants make complaint regarding admission of certain testimony, but in cases of this nature it will be presumed that the court considered only competent evidence. Tunison v. Chamblin, 88 Ill. 378.

It amply appears from the evidence that appellees, Coughlins, acted in entire good faith and paid their money retying upon the public records of Kane county, which showed the payment of the indebtedness and discharge of the lien. There was nothing irregular in the acts of the trustee, and nothing occurred to put the Coughlins upon inquiry or notice of any outstanding claims whatsoever, against the property that was purchased.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Justice Dove

text:
    Thomas Gahagan et al., Appellees, v. Cora Whitney, Appellant.
    Gen. No. 8,678.

      Opinion filed September 20, 1933.
    Jacob Cantlin and Samuel Rubin, for appellant.
    John M. Stager, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

Appellees, as creditors of the Tampico State Bank, brought this suit on behalf of themselves and all other creditors similarly situated to enforce a stock liability against appellant Cora Whitney and others.

It appears from the evidence that the Tampico State Bank was organized in 1918 and operated from that time until the 18th day of March, 1932, when its affairs were turned over by its board of directors to the auditor of public accounts to be liquidated. Fred A. Brewer owned 25 shares of stock in this bank and died intestate on July 15, 1923, leaving as his only heir at law his widow Cora Brewer, now Cora Whitney, who was duly appointed administratrix of his estate and continued to act as such until January 3, 1930, when her final report was approved and she was discharged and the estate closed.

As administratrix, appellant inventoried this stock, but no further mention thereof is made in any of the estate proceedings. Shortly after the death of her husband, appellant received from the bank a certificate evidencing the fact that her husband owned 10 shares of stock in this bank, and she receipted the bank therefor, signing her name to the stock register book. This certificate is dated June 27, 1923, but was not delivered to Fred A. Brewer in his lifetime. The two other certificates evidencing the ownership of 15 additional shares had been delivered to Mr. Brewer, and from the time the several certificates were issued, the stock has always stood in the name of Fred A. Brewer on the books of the bank. During the course of administration, certain inventoried items of personal property were sold, but not the bank stock. The final report discloses that all the debts and claims against the estate were paid, the administratrix charging herself with having received $7,307.04, out of which she paid $2,649.32, leaving a balance in money of $4,657.72, which she retained as sole heir of the deceased. During the year 1928 and while the estate was being administered, the board of directors of the bank authorized the payment of two dividends of five per cent each to the stockholders, and dividend checks were issued, aggregating $250, payable to appellant individually, who received the money represented by these checks.

From g decree finding that appellant was a stockholder at the time the bank closed and ordering the payment by her of $2,500 in order to discharge such liability the record is brought to this court for review by appeal.

Appellant insists that a liability as a stockholder cannot be imposed upon her simply because she was the sole heir of her husband, that there was no acceptance of this stock by her in her individual capacity, either while she was acting as administratrix or since her discharge, that the dividends she received were received by her while she was acting as administratrix of the estate of her deceased husband, and as her name does not appear on the books of the bank as a stockholder, she never was in fact a stockholder in this bank.

In In re Bingham, 127 N. Y. 296, 27 N. E. 1055, relied upon by appellant, it was sought to hold the estate of the deceased for a stock assessment upon certain shares of bank stock which stood on the books of the bank in the name of the son of the deceased, who was the owner thereof at the time of his, the- son’s, death, he having predeceased his father, and the father being the sole heir and next of kin and administrator of his son’s estate. It appeared in that case that the father, after the death of his son, voted the stock and received dividends thereon, but at the time of the death of the father, he, the father, had not completed the administration of his son’s estate, and the court held that the father’s control of the stock and the receipt of dividends thereon was consistent with the fact that he was administrator of the estate of his son and that while he may have paid such claims against his son’s estate as were undisputed, he never had made any judicial settlement of his accounts as administrator and that the only interest he could have had in the stock was a residuary interest after the payment of the debts of his intestate and that until he was discharged as administrator, he held title to the stock only in his representative capacity.

Upon the death of her husband, appellant became the owner of his property, subject only to the payment of his debts. Her final report, filed and approved more than two years prior to the time the bank closed, shows not only that all of his debts were paid, but that she actually received in cash the sum of $4,657.72. While acting as administratrix, she either received the dividends declared and paid by the bank upon this stock in her individual capacity, or as administratrix of the estate of her husband. If she received them as administratrix, she should have charged herself therewith in her final report, but she did not do so. Had she done so, the only effect would have been to augment by $250 the amount her final report discloses she received after the payment of all the debts and claims against her deceased husband’s estate. It may be unimportant, therefore, under the circumstances as shown by this record, that the dividend checks were made payable to her order individually, and that she indorsed them in her individual capacity and treated them as her individual property and not as property of the estate. If, however, prior to her discharge as administratrix she may be said to have held this stock in her representative capacity, still her representative capacity ceased upon her discharge as administratrix. Her final report made no mention of these certificates of stock, but she continued to retain possession of them and took no affirmative action to disclaim her title during the 26 months which elapsed after her discharge as administratrix and before the bank closed. There were ways open to appellant by the exercise of which she could have avoided being treated as a stockholder in this proceeding. Rosenfeld v. Horwich, 221 Ill. App. 304. Appellant, however, did nothing, but permitted the books of the bank and also the public records of the county to remain as they were at the time of her husband’s death, and had the public records of the probate court been examined, they would have disclosed that she administered the estate, inventoried this stock, that it had not been sold, but all the debts and claims against the estate had long since been paid, and her final report, showing the receipt by her of a substantial sum, had long since been filed and approved, and she had been discharged as representative of his estate.

Of course the liability of a stockholder in a state bank may not be imposed upon anyone without either the express or implied consent of such person, nor can individual property be taken from heirs to satisfy a stock liability upon stock which they do not in fact own. “One to whom stock in an insolvent corporation is bequeathed is not liable for debts of the corporation where the stock was not transferred on the books and where no acceptance by him of the bequest is shown. But where a legatee on distribution of the estate accepts .corporate stock, he. will- be considered the owner from the death of the testator and as such liable for debts contracted after the testator’s death and before distribution.” 14 C. J. 1015. While no formal order was entered in the probate court distributing this stock in kind to appellant, her conduct precludes her from denying an acceptance thereof.

It is not essential to the liability of a stockholder in an insolvent banking corporation for an assessment on his stock for the benefit of creditors thereof that the stock stand on the corporate books in the name of the stockholder assessed. Doster v. Mobley, 38 Ga. App. 508,144 S. E. 385; and where a widow and heirs are allotted shares of stock in proportion to their interest in an estate, and they permit the stock to stand in the name of the deceased without any notice of their title to it, they are liable to assessments on the stock in case the bank subsequently becomes insolvent. Matteson v. Dent, 176 U. S. 521. See also Luce v. Thompson, 36 F. (2d) 183.

Counsel for appellant further insist that appellees as creditors of the bank, having failed to file their claim against the estate of Fred A. Brewer, are barred from seeking a recovery against appellant and rely upon Sanders v. Merchants State Bank of Centralia, 349 Ill. 547. In that case it appeared that Robert Barron was the owner of 40 shares of stock in the defunct bank. Nearly six years before the bank failed he transferred those shares and two years later died, leaving a will, by which, he gave all his property to Martha Barron, his widow. His estate was finally settled and the executrix discharged over two years before the failure of the bank. The court held a failure by the creditors of the defunct bank to present a claim against Robert Barron’s estate within one year was a bar to a recovery in any other proceeding against the widow. There is nothing said in the opinion in that case in conflict with our holding here.

In this proceeding, under the facts as they appear in this record, appellant must be treated as a stockholder of this bank, and the chancellor properly decreed that she was liable in this proceeding. The decree appealed from is affirmed.

Decree affirmed.


author: Mr. Presiding Justice McSurely

text:
    First District.
    Wilhelmina Bowles, administratrix of the estate of Edmund J. Bowles, deceased, appellee, v. Fidelity Health and Accident Company of Benton Harbor, Michigan, appellant.
    Gen. No. 36,565.
    Opinion filed June 12, 1933.
    E. R. Hartigan, for appellant. Owen, O’Brien, MeKeown & Allan, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Northern Trust Company, appellee, v. Mary R. Cameron et al. Board of Foreign Missions of the Presbyterian Church in the United States of America and the Chicago Home for Incurables, appellants.
    Gen. No. 36,639.
    Opinion filed June 12, 1933.
    Loesch, Scofield, Loeseh & Burke and Chapman & Cutler, for appellants; David L. Dickson, Richard J. Frankenstein and Charles M. Thomson, of counsel. Whitman, Miller & Coon, for certain appellees; Russell Whitman and Claude H. Coon, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Thomas Jakubowski, plaintiff in error.
    Gen. No. 36,664.
    Opinion filed June 12, 1933.
    Joseph W. Sehulman, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Grenville Beardsley and Albert Woll, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Ann Hawkins, defendant in error, v. Edgar McClun, plaintiff in error.
    Gen. No. 36,489.
    Opinion filed June 12, 1933.
    John A. Bloomingston, for plaintiff in error; Boy S. Gaskill, of counsel. Joseph D. Byan, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Warren Herrick, appellee, v. Theodore Dickinson, appellant.
    Gen. No. 36,568.
    Opinion filed June 12, 1933.
    Rehearing denied June 26, 1933.
    Zane, Morse, Zimmerman & Norman, for appellant. Peden, Melaniphy, Ryan & Andreas, for appellee; John C. Melaniphy, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Charles Humber, appellee, v. Joseph Schoen, appellant.
    Gen. No. 36,615.
    Opinion filed June 12, 1933.
    Hamer & Campbell, for appellant; Chester D. Kern, of counsel. Charles G. Palmer, for. appellee; Clyde C. Fisher, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    George H. Adamson, appellant, v. Gaertner Scientific Corporation, appellee.
    Gen. No. 36,718.
    Opinion filed June 12, 1933.
    Rehearing denied June 26, 1933.
    Goldman, Allshouse & Healy, for appellant; M. M. Loman and Robert G. Dreffein, of counsel. Clarence A. Toolen, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Me Surely

text:
    The People of the State of Illinois, appellee, v. Maurice A. Barnett, appellant.
    Gen. No. 36,674.
    Opinion filed June 22, 1933.

      John L. Fogle and Max M. & Samuel Grossman, for appellant; John L. Fogle and Samuel Grossman, of counsel. Thomas J. Courtney, State’s Attorney, for appellee; Edward E. Wilson, Grenville Beardsley and Albert Woll, Assistant State’s Attorneys, of counsel.
   Mr. Justice Me Surely

delivered the opinion of the court.


author: Mr. Presiding Justice Sullivan

text:
    The People of the State of Illinois ex rel. Oscar Nelson, complainant, v. Garfield State Bank, defendant. Appeal of Maria Di Nunzio, appellant, v. John J. Driscoll and Arthur Jacobs, appellees.
    Gen. No. 36,263.
    Opinion filed June 30, 1933.
    Rehearing denied July 11, 1933.
    A. W. Martin and Edward H. S. Martin, for appellant. Levy & Sehmetterer, for appellees. '
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Sam Freemark, appellee, v. Irving Eisenman, appellant.
    Gen. No. 36,291.
    Opinion filed June 30, 1933.
    Rehearing denied July 11, 1933.
    Abrams, Sherman & Lewis, for appellant; Maurice L. Lewis and Preston Clark, of counsel. S. Stanley Stoller, for appellee; S. Stanley Stoller and Elliott A. Berman, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    J. P. Buenemann and G. F. Knapp, trading as Buenemann & Knapp, appellants, v. Harry P. Munns, appellee.
    Gen. No. 36,310.
    Opinion filed June 30, 1933.
    Teller, Levit, Silvertrust & Levi, for appellants. Ralph Rosen, for appellee; O. J. C. Wray, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.