author: Mr. Justice McSurely

text:
    Virginia Haines Heckler, Appellant, v. Kate S. Young et al., Appellees.
    Gen. No. 35,366.

      Opinion filed December 28, 1931.
    Cloyes & Klihgler and C. E. Heckler, for appellant.
    Thomas J. Yotjug, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court:

Complainant filed her bill, asking for a construction of the will of Annie Donahue, deceased. Answers were filed and a reference had to a master in chancery who heard the evidence and made his report recommending a decree favorable to complainant. The chancellor sustained exceptions to this report, ordered the bill dismissed for want of equity and held that the costs and amount of attorneys’ fees should not be taxed against the estate.

The paragraph of the will involved is as follows :

“Third: I give, devise and bequeath to Virginia Heckler (nee Haines), of Chicago, Illinois, thirty (30) shares of capital stock of Union Carbide & Carbon Corporation. In the event that I should not be possessed of said shares of capital stock at the time of my death, then I direct that the said Virginia Heckler receive from my estate an amount in cash equivalent to the market value of said stock hereinabove devised to her, said market value to be fixed as of the date of this my last Will and Testament.”

Complainant claims that at the time the will was executed the Union Carbide & Carbon Corporation (hereafter called the Carbon corporation) was in the process of increasing the number of the shares of its stock so that each stockholder would receive three shares for each share theretofore owned; that when the will was executed the testatrix owned 70 shares which subsequently were increased to 210 shares, and complainant contends that in view of these circumstances the bequest to her should be construed so as to give her 90 shares of the new stock instead of 30. The theory of defendants was that there is no ambiguity in the will; that when testatrix died she owned 210 shares of the new issue and that complainant is entitled only to the number of shares mentioned in the will, namely, 30 shares of this issue. This position was sustained by the chancellor.

It was shown that one share of the new stock has a market value of about one-third of the old, hence if complainant receives 30 shares of the new stock she will receive stock worth one-third the value of 30 shares of the old. If she receives 90 shares of the new she will receive an equivalent of 30 shares of the old.

The master held that the testatrix did not possess the 30 shares when she died, hence the alternative in the paragraph of the will became operative, and that complainant should receive an amount in cash equivalent to the market value of said stock as of the date of the will. This was found to be $254 a share, and the 30 shares would be worth $7,620. The master recommended a decree accordingly. The complainant in her brief does not concede that the bequest failed, as found by the master, and argues that the mere change in form of an object bequeathed does not cause its failure.

We cannot agree with the contention of defendants that in view of the apparently unambiguous language of the will, evidence of the attending circumstances was incompetent. It is the established rule that equity will entertain the construction of a will which, though clear on its face, discloses a latent ambiguity when read in the light of extrinsic facts. Among the many cases so holding are Decker v. Decker, 121 Ill. 341; Whitcomb v. Rodman, 156 Ill. 116; Graves v. Rose, 246 Ill. 76; Cochran v. Cochran, 277 Ill. 244; Wahl v. Schmidt, 237 Ill. App. 372. While extrinsic evidence is never admissible for the purpose of varying the intent as expressed in the will itself, yet such evidence is admissible to enable the court to read the will in the light of the circumstances surrounding the testator at the time the will was-made so as to aid the-court in determining the intention. Bimslager v. Bimslager, 323 Ill. 303.

Annie Donahue, the testatrix, died August 28, 1929 ; she was then about 78 years of age; she had never married; her estate consists entirely of stocks and bonds valued at approximately $48,000. Complainant is not related to the testatrix but their family ties were close. From about 1870 until the death of complainant’s grandmother in 1901, testatrix lived in the family of Mr. and Mrs. Haines, complainant’s grandparents. After 1901 their daughter, Elizabeth Haines, who was the aunt of complainant, lived with the testatrix in terms of close companionship. Elizabeth Haines died in 1925 and by her will the testatrix received, as residuary legatee, 50 shares of stock of the Carbon corporation. At this time testatrix owned in her own right 20 shares of stock in this corporation which with the bequest from Elizabeth Haines gave her ownership of 70 shares. Shortly thereafter, on December 9, 1926, testatrix made a will in which she bequeathed to complainant 30 shares of the capital stock of the Carbon corporation.

In January, 1929, the instant will was drafted and typewritten in the office of Thomas J. Young, testatrix’s solicitor, who with Kate Young are the executors. This will was not signed until about four months later. This second will also bequeathed to complainant 30 shares of the stock of the Carbon corporation, as in the prior will.

March 19, 1929, the Carbon corporation mailed to its stockholders from its office in New York City a notice of the annual meeting to be held in New York on April 16. It was stated in the notice that one matter .to be considered and acted upon was a proposition to increase the authorized number of shares from 3.000. 000, no par value, to 12,000,000, no par value, and to change the existing issue of" 3,000,000 shares into 9.000. 000 by exchanging three shares of the new stock for each share of the old stock. A form of proxy was prepared, to be returned by the stockholders, and apparently this was returned by the testatrix.

April 16, the meeting of the stockholders was held and the proposed increase and the exchange of stock on the basis of 3 for 1 was authorized, and the officers were directed to file a certificate as directed by statute, to carry into effect the increase and exchange in shares. Under the laws of New York such increase is effected by filing a certificate with the Secretary of State.

April 22, the corporation mailed a circular letter to its stockholders, including testatrix, informing them that the proposed action of increase in stock had been authorized and that the certificates of the new shares would be ready for delivery on and after May 9. The letter also requested the stockholders to forward their old certificates unindorsed for exchange, and stated that old certificates would not be issued after May 8, but it was expected that the old stock would continue to be listed on the exchanges for approximately one week after May 8. April 26, pursuant to this notice, testatrix delivered to the corporation her certificates, unindorsed, for her 70 shares of stock and a receipt was mailed to her showing that she was entitled to 210 shares of the new stock.

May 6, the will in question was executed by the testatrix.

May 8, the certificate of increase and change of the corporation was filed with the Secretary of the State of New York. The exchange of stock was made on and after May 9. None of the new shares were issued by the corporation prior to this date. New certificates for 210 shares were issued to testatrix dated May 9 and delivery was made to her after May 12.

The new stock was first listed on the exchange May 9 and trading in the old stock ceased on May 18. The market value of the old stock on May 6, the date of testatrix’s' will, was $254% per share. After May 9 and up to May 18, both the old and new shares were traded in and the market value of the new shares during this time was approximately one-third the market value of the old shares. There was in evidence a provision of the laws of New York to the effect that if any shares of a corporation should be changed into a different number of shares of the same class, the corporation shall be deemed to have received for the issuance of the new shares the amount of the capital represented by the old shares.

In addition to the bequest to complainant, the will contains nine gifts of money to various individuals, and the residue of her estate was left to her executors, Kate and Thomas J. Young, to be expended for charitable and religious purposes, “as in their judgment might be deemed most suitable and proper.” At the time of the death of testatrix her estate was amply sufficient to pay all pecuniary bequests, to satisfy complainant’s bequest however construed, and to leave a substantial amount in the residuary estate.

It is axiomatic that in determining such a question as this the court should attempt to put itself in the place of the testator for the purpose of arriving, if possible, at the intention of the testator. It has been aptly expressed that to arrive at the intention the court “sits in the testator’s armchair.” Boyle v. Moore, 299 Ill. 571; Wallace v. Noland, 246 Ill. 535; Bingel v. Volz, 142 Ill. 214; Himmel v. Himmel, 294 Ill. 557. While it is the general rule that a will speaks from the death of the testator, yet this rule has limitations where there are circumstances which indicate that to enforce the rule will not carry out the intention of the person making out the will. In In re Mandelle’s Estate, 252 Mich. 375, the court said: “It is more accurate to say that a will is not operative until the death of the maker and then speaks the intention of the maker at the time of its execution.” Cases on wills cited may guide us in the general rules on the construction of wills, but unless such cases are identical in every respect and the circumstances are like those in question, they can be of little help to the court. Precedents and rules are frequently of slight value in the interpretation of wills, as such instruments are rarely, if ever, identical in wording, and are often not even similar. O’Hare v. Johnston, 273 Ill. 458.

A consideration of the circumstances surrounding the execution of the present will leads us to conclude that it was the intention of the testatrix to bequeath to complainant 30 shares of the 70 shares of stock of the Carbon corporation owned by her prior to the exchange, and not 30 shares out of the 210 shares of the new stock. The testatrix and the family of the complainant had been on the closest terms of friendly intimacy since 1870; complainant’s aunt and the testatrix lived together as companions for 24 years; complainant’s aunt left the testatrix 50 shares of stock of the Carbon corporation; shortly thereafter the testatrix made a will bequeathing to complainant 30 shares out of the 70 shares of stock of the corporation. Her remaining 40 shares were bequeathed to another person, Agnes Bigney. The will remained in this condition for a little more than two years, and when it was redrafted virtually the only change made was the ■ elimination of this gift of 40 shares to Agnes Bigney. In this redraft the date of the will and of the acknowledgment is typed “January, A. D. 1929”; when it was signed, apparently thereafter, a line was drawn by pen through “January” and above this was written “May.” It is reasonable to conclude that the testatrix intended by both wills that the complainant should have the same number of shares of the same class of stock. Her intention by the second will was with reference to the conditions existing at the time the will was drafted, namely, in January. The record does not disclose anything which might cause the testatrix to change this bequest in the second will from what it had been in her first will; the language in both is identical.

Defendants argue strongly that at the time the will was signed the testatrix knew that the proposed exchange of stock was in process^of being effected, and that from this date, May 6, td the following August when she died, she made no attempt to change the wording of this bequest. On the other hand, it is reasonable to suppose that the testatrix had in mind that she had definitely described the shares which she intended complainant to have and assumed that these shares, after the increase in the whole number of shares, would pass to complainant in their changed form of 3 for 1. A similar situation was involved in Fidelity Title & Trust Co. v. Young, 101 Conn. 359, where the court said, “As to the argument derived from the testator’s failure to change his will after the par value of the stock was reduced, it is enough to say that if we have correctly interpreted testator’s original intent, he might well suppose that there was no occasion to make any change.” Furthermore, a stock split-up in shares, without a change in the comparative interest in the corporation is merely a change in form and does not cause a change in the nature of the shares thus effected. Blinn v. Gillett, 208 Ill. 473; DeKoven v. Alsop, 205 Ill. 309.

There is also a persuasive reason indicating the intention of the testatrix to leave complainant the 30 shares of the original stock or its equivalent in the new issue, which is found in the language of the third paragraph of the will itself. After bequeathing to complainant 30 shares of stock follows the alternative bequést that, in the event the testatrix should not be possessed of said shares of stock at the time of her death, “then I direct that the said Virginia Heckler (complainant) receive from my estate an amount in cash equivalent to the market value of said stock hereinabove devised to her, said market value to be fixed as of the date of this my last Will and Testament.” Manifestly, it was the intention of the testatrix in the event that she did not possess the stock at the time of her death, to give to complainant its equivalent in cash. The date on which the market value of the stock was to be fixed is the date of her will, and when this was written the date was in January, 1929, although subsequently this was changed to May 6.

If, after the increase of stock had been completed and testatrix had received the new certificates for 210 shares, she had sold them, then in that event, under the alternative provision of paragraph three, complainant would receive cash equivalent to the market value of the stock devised as fixed by the market value on the date of the will, that is, May 6th. This provision could only refer to stock then owned by testatrix on that date. Did she then own 70 old shares or 210 new shares? As the increase in the capital stock was not effected until May 8, the new certificates not issued until May 9, and the old stock was traded in on the exchange until May 16, the better argument favors the conclusion that on May 6 she owned 70 shares of the old stock. If this is true, and she had subsequently disposed of her stock, complainant would receive in cash approximately $7,620, but if she retained her stock complainant would receive, according to defendants’ theory, shares having a value of only one-third of this amount. It is unbelievable that any such result was intended. It is more rational to believe, in view of all the circumstances we have referred to, that the intention was to give to complainant 30 shares of old stock or its equivalent in new stock or, under the conditions stated, in cash.

From what we have said it is clear that complainant was entitled to her costs and a reasonable allowance for solicitors’ fees. Guerin v. Guerin, 270 Ill. 239, and cases there cited.

Complainant asks for the dividends paid on the 90 shares of stock since the death of decedent, citing In re Security Trust Co., 221 N. Y. 213; In re Largue’s Estate, 267 Mo. 104, 183 S. W. 608; Sherman v. Riley, 43 R. I. 202, 110 Atl. 629. This does not seem to he controverted, and these dividends should be allowed to complainant.

For the reasons indicated we hold that it was error to dismiss the complainant’s bill for want of equity, and the decree is therefore reversed and the cause remanded with directions for further proceedings consistent with what we have said in this opinion.

Reversed and remanded with directions.

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


source: Caselaw Access Project

license: Public Domain

text:
    Crystal Lake Country Club, Appellee, v. Joseph P. Scanlan, Appellant.
    Gen. No. 35,470.

      Opinion filed December 28, 1931.
    Daniel L. Madden, for appellant; Boy C. Merrick, of counsel.
    Samuel & Frank, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, a country club, brought suit against defendant, an alleged member, for an assessment levied and for dues and current obligations. Defendant’s affidavit of merits asserted that his membership had been terminated; that during the time he was a member all his dues and obligations were paid.

June 24, 1931, the case came on for trial before his honor, Judge Howard Hayes, in the municipal court, without a jury, and defendant being absent and not represented there was a finding and judgment against defendant for $310.20.

On the following day defendant filed a petition, supported by affidavits, asking that the judgment be vacated and the case set down for trial. Counsel for plaintiff filed a counter-affidavit. Thereupon the court denied the motion to vacate the judgment and from this order defendant appeals.

Counsel for defendant asked leave to file an answer to the counter-affidavit of the plaintiff, which leave was properly denied. Ho point, however, is made by defendant upon this ruling.

It is the well settled rule in such cases that parties seeking to have an ex parte judgment set aside must show due diligence. Plaintiff makes the point that defendant must also show in his petition or affidavit that he has a meritorious defense. This is the rule in cases where there is default for want of a plea. Where an affidavit of merits already filed shows a defense on the merits, it would be superfluous to repeat this in a petition to vacate a judgment. Defendant asserts that it was improper to permit plaintiff to file counter-affidavits, but such practice has long been approved. Gilchrist Transportation Co. v. Northern Grain Co., 204 Ill. 510; Kloepher v. Osborne, 177 Ill. App. 384; Mutual Life of Illinois v. Little, 227 Ill. App. 436. It is improper, however, to receive counter-affidavits on the merits. They should go only to the question of diligence of the opposing counsel. Elaborated Ready Roofing Co. v. Hunter, 262 Ill. App. 380.

The substance of the petition and supporting affidavits to vacate the judgment is that on June 23, defendant’s counsel was fully prepared and expected to try the case on the following day, but that at five o’clock p. m. June 23, he was called into a trial at the probate court and attended there and was instructed by, the judge sitting in the probate court to present himself the following morning at 9:30 a. m., which he did, and continued in the trial before the probate court until 2 p. m., on the 24th; that his associate, Mr. Toomey, was also engaged before Judge Joseph Burke, beginning at 9:30 a. m. on June 24; that he instructed his clerk, John J. Madden, to attend to the call of the case of Crystal Lake Country Club v. Scanlan, before Judge Hayes, and to ask that it be continued until 2 p. m., when either he or Mr. Toomey would try it. John J. Madden says that he had two other cases before Judge Sonsteby in the municipal court the morning of June 24, to which he was obliged to give attention; that before going to Judge Sonsteby’s court he checked the call before Judge Hayes and found that the Crystal Lake Country Club case was the sixth to the last on the call, and he estimated he would have sufficient time to attend the matters before Judge Sonsteby to enable him to return to Judge Hayes’ court room before the case was called; that when he returned to Judge Hayes’ court room he found the ex parte judgment against defendant, Seanlan, had already been entered.

The counter-affidavits assert that the case was originally set for trial for June 4,1931; that the day before he had a talk with Mr. Madden, defendant’s attorney, relative to a settlement; that he heard nothing from Mr. Madden and that on June 4, he appeared in court with his witnesses ready to try the case; that thereupon Mr. Madden conferred with plaintiff’s attorney, pleading for a continuance, that he would make an effort to settle the case, and that thereupon affiant agreed to continue the case to June 24; that June 23 he informed an office assistant to Mr. Madden that the case would be ready for trial on the following day and that the witnesses would be present; that his witnesses were present on the following morning* in the court room of Judge Hayes; that the case was called for trial; that on the first call there was no response for defendant; that the case was called a second time and there was no response for defendant; that on the second call he informed the court that he would remain there with his witnesses for a time, as he was anxious to try the case; that he remained in court until 11 a. m.; that upon request made by him the bailiff called several' times for defendant’s attorney and inquired if anyone was in the court from Mr. Madden’s office and no response was made.

From the foregoing it is obvious that defendant’s failure to appear when the case was called for trial on the morning of the 24th was on account of the number of cases requiring the attention in court of defendant’s counsel on that morning. Both Mr. Madden and Mr. Toomey were actually engaged in the trial of other cases and the clerk in their office was instructed to look after three other eases on the call that morning. While the clerk of defendant’s attorney might be fairly criticized for not exercising the highest degree of diligence, yet we know as a matter of actual experience, in view of the large number of judges sitting in this county with their conflicting calls of cases, that it will frequently happen that even with the utmost diligence and attention there may be a failure of attorneys to be present when some matter in which they are interested is called. In the present case there was apparently no desire to avoid the trial and an earnest effort was made to so arrange the engagements for that day that defendant’s counsel could be present to try the case. We are inclined to think that the situation called for the exercise of liberality with reference to the motion to vacate and not for a too critical attitude towards defendant’s counsel. Upon condition that plaintiff’s attorney be compensated for his time and services and also for the expenses incident to the attendance of plaintiff’s witnesses, the court might well have vacated the judgment and set the case down for trial.

The case itself presents rather an interesting question, namely, whethér an alleged member of á club organized for social or athletic purposes can be held liable for assessments and dues although he claims that under the By-laws his membership' has been automatically terminated. A determination. of this question involves questions of fact and of law and is important.

We therefore hold that under the circumstances the trial court should have vacated the judgment, imposing just and reasonable conditions upon the defendant’s attorney.

The order is reversed and the cause remanded for further proceedings consistent with what we have said herein.

Reversed and remanded.

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


text:
    Ava W. Farwell, Appellant, v. Illinois Merchants Trust Company (Now Known as Continental Illinois Bank & Trust Company) as Trustee Under the Trust Agreement from Ava W. Farwell, Appellant. Loretta E. Farwell, Appellee.
    Gen. No. 35,491.
    O’Connor, P. J., dissenting.

      Opinion filed December 28, 1931.
    Rehearing denied January 11, 1932.
    McCulloch & McCulloch, for appellant Continental Illinois Bank & Trust Co.
    Kirkland, Fleming, Creen & Martin, for appellant Ava W. Farwell.
    Hopkins, Starr & Bodman, for appellee; 0. John Rogge, of counsel. '
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by the Illinois Merchants Trust Company, trustee, from an order that it pay to Loretta E. Farwell out of a trust estate held by it, $5,000, for the use of Hopkins, Starr & Hopkins for their services as solicitors of Loretta E. Farwell in this case. The propriety of this order is the only question for this court to decide.

The circumstances giving rise to this litigation are unusual. On May 28, 1918, Ava W. Farwell, hereafter called complainant, then 67 years of age, made a trust agreement conveying property valued at about $750,000 to The Northern Trust Company as trustee, the net income to be paid to complainant during her life. The complainant had one son, John Arthur Far-well; he was married to Loretta E. Farwell, from whom he had been estranged for some time before this. There were a number of circumstances, unnecessary to narrate, which caused complainant to be critical towards her daughter-in-law. John Arthur Farwell was insisting that his mother give him approximately $275,000 to enable him to effect a settlement with and secure a divorce from Loretta, and to effect some sort of settlement with a Mr. Scharff and thereafter to marry Mrs. Scharff. Complainant was opposed to having her son marry Mrs. Scharff and had withstood his demands. Mr. Ashcraft, who had been complainant’s attorney and the attorney of her husband then deceased, was consulted as to how she might escape the importunities of her son. Mr. Ashcraft advised her in substance that if she wished to place her property entirely beyond her control she could do so by conveying her estate to a trustee, and that such conveyance would be irrevocable. Pursuant to this advice the trust agreement of May 28, 1918, was executed. This agreement provides that if John Arthur Farwell should die leaving a widow other than Edith S. Scharff, the trustee shall after the death of said son select and set aside a sufficient amount of securities for the benefit of such widow to realize a net income of $5,000 per annum, such income to be paid to the widow during her widowhood. By this provision Loretta E. Farwell has an interest in the trust to the amount of $5,000 a year, provided she continues to be the wife of John Arthur Farwell until his death, and dependent upon her surviving both him and his mother. In 1925, Loretta was about 50 years of age, she had no child and did not live with her husband, although they were not divorced.

In 1916, Loretta brought suit against her mother-in-law seeking damages for the alleged alienation of the affections of her husband. The judgment was against Loretta in the trial and this was affirmed in the Appellate Court — 234 Ill. App. 638. It is quite apparent that the hostility of complainant to her daughter-in-law was increased by circumstances attending the trial of this alienation suit. Complainant testified in the present case that “there was humiliating and dreadful publicity,” and evidently she was of a mind to cut off Loretta from her beneficial interest in the trust if possible. To this end she first advised with former Judge Charles S. Cutting, who drew up a proposed modification and August 7, 1922, filed the original bill in this case, asking that the modification be allowed.

In this proposed modification it was provided that Loretta E. Farwell should be excluded from the benefit of the trust because of the vexatious and annoying-alienation suit brought by her against the complainant. Nothing was done with this bill for some time; later, the Northern Trust Company asked that it be permitted to resign as trustee and that the Illinois Merchants Trust Company be substituted as successor in trust, which was done.

December 8, 1924, complainant filed an amended and supplemental bill by counsel other than Judge Cutting, seeking to modify the trust of May 28, 1918. This amended bill alleges that complainant did not fully understand and appreciate the terms and provisions of the original trust; that it was executed under a mistake of fact and of law and was therefore voidable; that she desired to set aside the trust agreement and would bring proceedings to this end unless she was permitted to modify it as proposed; that the value of the estate was approximately $750,000. The original trust agreement provided that after the payment of $5,000 a year to the widow of John Arthur Farwell as above described, certain amounts should be paid to certain named beneficiaries, and the amended bill alleged that all of the beneficiaries except Loretta E. Farwell, the unborn children of John Arthur Farwell, two unorganized charities and the minor children and unborn children of Mabel Wallace, a beneficiary, and the unborn descendants of Thyrza, Greta and Alice Godwin, beneficiaries, who are unmarried, had consented in writing- to the proposed modification'of the trust.

This proposed modification authorized complainant during her lifetime to withdraw from the principal an amount not exceeding* in the aggregate $150,000, and to dispose of by will $100,000; that by reason of the vexatious proceedings referred to, the complainant wished to revoke, in so far as she had the power, the provisions for Loretta contained in the trust agreement of May 28, 1918, but in order to protect the trustee and the other beneficiaries of the trust the trustee was directed to immediately set aside and maintain a trust fund of securities sufficient to pay Loretta $5,000 per annum — but the trustee was directed not to pay said sum to Loretta until or unless her right thereto had been determined by the courts. There was also a provision that if Loretta’s rights should not be determined within 21 years after the death of the last survivor of the grantor and of John Arthur Farwell, Florence Ashcraft and Charleta Ash-craft, the trustee should pay said sum to Loretta in accordance with the provisions of the trust unless Loretta’s right to take should be determined adversely to her within the 21 years. It is pointed out in argument that by the trust agreement of May, 1918, Loretta takes precedence over the other contingent trusts, so that even if it should be modified so as to allow complainant to withdraw $250,000 there would be ample property left to produce a net income of $5,000 a year for her. Two of the defendants were defaulted; formal answers were filed for the minor defendants by a guardian ad litem; the attorney general, acting for the unorganized charities, filed a general denial and all the other defendants filed consents to the proposed modifications except Loretta E. Farwell and the Illinois Merchants Trust Company, trustee. The trustee in its answer asked the court “to protect adequately and properly all the rights and interests of Loretta Elizabeth Farwell, as beneficiary under said indenture of trust of May 28, 1918.” It also asked the court to protect the rights of the unorganized charities and the minors and unborn children. Also that it could not determine “whether or not it is to the best interests of all persons in esse and all persons not in esse who are or may be interested in said trust as created in said indenture of trust of May, 1918, to compromise and settle the claims of the complainant upon the terms offered by her; that this court should determine whether or not such compromise and settlement be made; that this court protect adequately and properly all the rights of all the beneficiaries of said trust now in being or hereafter born. ’ ’ Loretta answered, refusing to consent to the proposed modification and averring that it would impair her interest and injuriously affect the interests of others.

It is the position of Loretta E. Farwell and her solicitors that the trustee refused to perform its duties imposed upon it by the trust agreement and that it therefore became necessary for her solicitors to step into the breach and perform the services which the trustee should have performed in resisting the proposed modification of the trust. On the other hand, the trustee denied that it failed in any of its duties in this respect and says that the proposed new trust gives Loretta substantially the same contingent rights she had under the original trust, and that Loretta’s solicitors had no right to act for the other beneficiaries who were represented by their own solicitors and consented to the proposed modification, or to speak for the beneficiaries represented by the attorney general or by the guardian ad litem or for the defaulted beneficiaries ; that Loretta was serving no interests but her own and that her solicitors had no right to have their fees paid out of the trust estate.

It may be conceded at the outset that complainant’s purpose in proposing the modification was, if possible, to cut off Loretta from any beneficial interest in the trust. There were circumstances, unnecessary to relate, which might be considered to have justified complainant’s attitude in this respect. Loretta was also warranted in withholding her consent and in resisting the proposed modification. While the balance left in the estate after taking from it $250,000 as proposed, would apparently leave ample to take care of her contingent interest, yet the modification also imposed upon her the burden of establishing her rights in the courts.

We are not disposed to agree with the criticism made by Loretta’s solicitors on the conduct of the trustee. Complainant, an elderly lady, asserted that she did not understand that she had lost entire control of her property when she executed the trust agreement, but it was quite apparent before the hearing that she could not successfully sustain this claim. Mr. Ashcraft, by deposition taken some time before the hearing, gave convincing testimony that the irrevocable character of the instrument was fully explained to the complainant and that she so understood it. Upon the hearing this was amply confirmed by the uncontradicted testimony of the attorney for the Northern Trust Company and by its secretary. There was no real conflict upon the issue presented. The trustee in its brief in this court concedes this, saying: “It is obvious to everyone that the trust agreement executed in May, 1918, could not have been modified to the prejudice of anyone without his consent.” That this was true seems to have been a foregone conclusion calling for the expenditure of no special legal efforts in contest by any counsel in the case.

Should the chancery court allow solicitors’ fees in this case to Loretta’s attorneysÍ The general rule in this State is opposed to such an allowance, the principle being that such allowances are deemed as creating liabilities which did not exist at common law. Gehrke v. Gehrke, 190 Ill. 166; Northern Trust Co. v. Sanford, 308 Ill. 381. In both of these cases it was held that statutes allowing solicitors’ fees are to be construed strictly as they are penal in their character. In Wilson v. Clayburgh, 215 Ill. 506, was involved a question of whether a court of chancery in the exercise of its equitable powers should allow solicitors’ fees for a beneficiary under a trust who brought a suit to have the resignation of the trustee accepted and a new trustee appointed. It was held the chancellor had no such power; that the only exception to this rule in this State is in cases brought by trustees for the construction of wills, in which class of cases the cost of litigation must be borne by the estate. Woman’s Union Missionary Society of America v. Mead, 131 Ill. 338; Ingraham v. Ingraham, 169 Ill. 432. This decision was followed in Aloe v. Lowe, 230 Ill. App. 538, which was a proceeding for the assignment of a widow’s dower. It was held that inasmuch as complainant did not pray for further construction of the will than that already given in a decided case and in view of the fact that the bill was filed solely in her own interest, the order allowing solicitor’s fees was erroneous. Certiorari was denied in this case. In Jennings v. Hills, 247 Ill. App. 98, it was held that the allowance for complainant’s solicitor’s fees was improper as the bill did not involve the construction of an ambiguous will. To the same effect is Bevier v. Hay, 221 Ill. App. 1; Converse v. Hindes, 139 Ill. App. 370. In Rasch v. Rasch, 278 Ill. 261, Christian Basch individually and as trustee appealed from an adverse decree in the circuit court in favor of Christopher Basch, who was allowed solicitor’s fees. The Supreme Court reversed this, saying that it has been repeatedly held that solicitor’s fees cannot be taxed as costs against the unsuccessful party in a chancery suit in the absence of a statute. Kendall v. Taylor, 245 Ill. 617, was a suit for partition, but it was necessary to construe a will in order to determine who owned the property. The Supreme Court held against the allowance of solicitor’s fees on the ground that this was not a proceeding for the construction of a will but for partitioning of real estate. In Tincher v. Arnold, 147 Fed. 665, the allowance of solicitor’s fees was disallowed to a complainant seeking to have made void the testator’s bequest.to charity, in which event she would take the property as heir. It was said that the suit was plainly for her own interests alone and not for the interests of the defendant trustees. Other cases holding that solicitor’s fees should not be allowed except where the construction of a will was involved are Board of Administration v. Stead, 259 Ill. 194; Stevenson v. Stevenson, 285 Ill. 486; Jansen v. Godair, 292 Ill. 364; Billings v. Warren, 216 Ill. 281; Meily v. Knox, 191 Ill. App. 126.

In the instant case the bill seeks no interpretation or construction of the trust agreement, but proposes a modification only. Proceedings to construe a will are predicated upon ambiguities in the instrument. There is nothing of this kind either claimed or apparent in the instrument. Obviously, the solicitors for Loretta are not entitled to an allowance for fees upon the assumption that this is a proceeding involving a construction of the trust agreement.

Attorneys for Loretta cite a large number of cases in support of the proposition that where a trust agreement contains a clause making it absolutely irrevocable, the creator is subsequently without power to substantially change or modify it. As we have said, there seems to be no contest over this proposition.

It is urged that the trustee failed in its duty to defend the trust and to protect the rights of all the beneficiaries therein. As we have heretofore indicated, the circumstances do not indicate any failure of the trustee in this respect. Undoubtedly, being advised of the facts as to the execution of the instrument, the trustee was content to allow the proceedings to continue to their inevitable resnlt.

Cases where there is an attempt to terminate or revoke a trust are not in point as to the beneficiaries other than Loretta. The bill prayed for a modification as to these other beneficiaries, and, while it is evident that as to Loretta’s interests, the complainant desired to make it as" difficult as possible for her to obtain the benefits of the provision touching her interests, yet it does not amount to a termination or revocation; but even if it did seek to revoke as to Loretta’s interests, her contest would be for her own benefit alone and not for the benefit of anyone else.

We find no cases cited in the brief of the solicitors for Loretta E. Farwell "which are precisely in point. Most of them have to do with fees of trustees. A typical case is Patterson v. Northern Trust Co., 286 Ill. 564, in which solicitor’s fees Were allowed only to the trustee. Abend v. Endowment Fund Com’rs of McKendree College, 174 Ill. 96, is a trustee case in which two sets of trustees were involved and allowances for fees were made only to the trustees. In Stahl v. Stahl, 166 Ill. App. 236, was involved a bill to set aside a conveyance as fraudulent, to establish a trust, and for a partition of the real estate. A partition was allowed and an allowance was made to complainant for his solicitor’s fees. Cases cited in other jurisdictions are not in conflict with the rule established in this State. In Trustees of Internal Improvement Fund v. Greenough, 105 U. S. 527, the complainant, not a trustee, filed a bill alleging that the trustees were wasting and destroying the estate; It was there held that although complainant was not a trustee he may be said to have saved the fund for the beneficiaries and to have secured its proper application, and solicitor’s fees were allowed on the ground that, where one of many parties having a common interest in a trust fund, at his own expense takes proper proceedings to save it from destruction, he is entitled to reimbursement, either out of the fund itself or by contribution from those who accepted benefits from his efforts. A similar case is that of Harrison v. Perea, 168 U. S. 311.

The instant case presents a different situation. All of the defendants except the two who were defaulted had their own solicitors and counsel, and were acting in the way which best served their purpose. They had asked no assistance from Loretta or her counsel. The claim for solicitors’ fees cannot be predicated upon the assumption that she was working with the others in a common purpose. The several parties who were beneficiaries had attorneys of their own. They did not work in harmony with Loretta or in any common aim or purpose. For various reasons satisfactory to them they were willing to accede to complainant’s wishes.

Loretta’s solicitors are not entitled to fees because (as they argue) the interests in the trust estate of the other beneficiaries are increased through their efforts in defeating the proposed modification. The other beneficiaries were competent to have their own opinion as to this, and if, because of their friendship for the complainant or for any other reason, they desired to accede to her wishes, they had the right to do so without the interference of anyone. Even if the result of the efforts of Loretta’s solicitors in addition to benefiting her also resulted in benefit to the other beneficiaries, their services as to these latter were those of a volunteer and equity does not favor a volunteer. Engelthaler v. Engelthaler, 196 Ill. 230.

The efforts of Loretta’s solicitors were directed towards a result directly contrary to the expressed wishes of the other beneficiaries. The effect of the decree is to require the payment of Loretta’s solicitors out of the principal of the trust estate, in which case she would contribute n'othing for her solicitors’ fees but these would come out of the bequests to the charitable institutions and the Godwins, who were not contesting complainant’s desire to modify the trust agreement. We are inclined to agree with the suggestion that this decree requires the unwilling beneficiaries to pay $5,000 for something they never asked for and did not want, while Loretta, because of her contingent interest in the income and having priority over the interests of the others, “goes scot free.”

In view of the rule established in this State that solicitor’s fees shall not be allowed in chancery proceedings except in such cases as we have indicated, we are not prepared to enlarge the rule so as to permit them in the present case.

Other points are suggested upon which we do not deem it necessary to comment. We might remark, however, that it is doubtful whether the order allowing solicitors’ fees is a final decree disposing of all the issues in the case, but however this may be, we have treated it on the instant appeal as a final decree.

For the reasons above indicated, the order allowing fees to the solicitors of Loretta E. Farwell is reversed, and as we hold that such fees cannot be allowed in any event, it is unnecessary to remand the cause.

Reversed.

O’Connor, P. J., dissents.

Matchett, J., concurs.


text:
    Dezidar Balsay et al., Appellees, v. Antonina Conte et al. Appeal of Helen Hughes, Appellant.
    Gen. No. 35,576.
    Opinion filed December 28, 1931.
    Edward A. Miller, for appellant.
    No appearance for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

This is- an appeal by Helen Hughes from an order of the chancellor denying her leave to file her petition under section 19 of the Chancery Act, Cahill’s St. eh. 22,1T19. '

On July 24, 1929, complainants Dezidar Balsay and David J. Murphy, as trustee, filed their bill to foreclose a certain trust deed given to secure an indebtedness of $6,000 executed by Peter Conte and Antonina Conte, his wife. The bill alleged, among other things, an execution by the same parties of a certain other trust deed to secure payment of their note for $2,500, and it is alleged this second trust deed is a lien on the premises described in the bill, subject, however, to complainants’ trust deed. The holder and owner of the last mentioned note for $2,500 was made a party defendant under the style and description of “unknown owner.” Publication was duly had as to the unknown owners and default of all the defendants was entered September 25, 1929, and a decree was entered on November 15, 1929.

On March 6, 1931, Helen Hughes filed" her petition under section 19 of the Chancery Act, Cahill’s St. ch. 22, H19, in which she asserted in substance that she was the owner and holder of the $2,500 note and had been made party defendant to the foreclosure proceedings as an unknown owner; that she had not been summoned or served with a copy of the bill of complaint or received a notice of the pendency of suit which the clerk of the court was required to send, and had received no notice in writing of such decree. She asked that she be heard touching the matters of such decree upon such reasonable terms as to the court might seem just, pursuant to the statute. Leave to file this petition was denied.

No one appears in this court in opposition to this appeal, and no suggestion is made and none occurs to us as to the theory which moved the chancellor to deny leave to file the petition.

Section 19 as it t-hen stood was in substance as follows :

“When any final decree shall be entered against any defendant who shall not have been summoned or been served with a copy of the bill, or received the notice required to be sent him by mail and such person, his heirs, devisees, executor, administrator or other legal representatives, as the case may require, shall, within one year after notice in writing given him of such decree, or within three years after such decree, if no such notice shall have been given as aforesaid, appear in open court and petition to be heard touching the matter of such decree, and shall pay such costs as the court shall deem reasonable in that behalf, the person so petitioning may appear and answer the complainant’s bill, and thereupon such proceedings shall be had as if the defendants had appeared in due season and no decree had* been made. And if it shall appear, upon the hearing, that such decree ought not to have been made against such defendant, the same may be set aside, altered or amended as shall appear just; otherwise the same shall be ordered to stand confirmed against said defendant.”

The petitioner complied in every particular with the foregoing statute and was entitled to file the petition as a matter of right. Trustees of M. E. Church v. Field, 135 Ill. 112; Jenkins & Reynolds Co. v. Wells, 220 Ill. 452. In Philip Collner Co. v. Gillette, 216 Ill. App. 25, it was held that the statute, being remedial in character, should be liberally construed. See also First Congregational Church v. Page, 257 Ill. 472; Northern Trust Co. v. Sanford, 308 Ill. 381.

For the reasons indicated the order denying petitioner leave to file her petition is reversed and the cause is remanded to the circuit court with directions to grant Helen Hughes leave to file her petition and permit her to plead, answer or demur to the bill of complaint upon payment of such costs as that court may deem reasonable.

Reversed and remanded with directions.

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


author: Mr. Justice McSurely Matchett, J., dissenting:

text:
    National Contract Purchase Corporation, Appellant, v. Harry E. McCormick and John Doe, Appellees.
    Gen. No. 35,601.

      Matchett, J., dissenting.
    Opinion filed December 28, 1931.
    Rehearing denied January 22, 1932.
    Walter A. Myer and Hoeeman & Jaeee, for appellant.

      Schofield & Wood, for appellees; Frank Schofield and David H. Kraft, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action of replevin wherein plaintiff sought recovery of a Chandler automobile. The car was taken under the writ from the defendant McCormick. The case was tried by the court, without a jury, upon a stipulation as to virtually all the facts except as to the measure of damages. The court found the right of property in the defendant and assessed his damages against the plaintiff at $6,120. Plaintiff appeals.

It is first contended that under the pleas filed the writ of retorno habendo could not properly issue.

Defendant first filed three pleas — non cepit, non detinet, and, in the third plea said that the goods mentioned in the declaration were the property of defendant and not of the plaintiff, and asked that he have return of the goods and damages as provided by the statute. Fourth and fifth pleas were filed setting forth the claim of usury in connection with a loan made by plaintiff to defendant secured by a chattel mortgage upon the car in question. Plaintiff correctly says that where only pleas of non cepit and non detinet are filed and the issues are found for defendant, the defendant takes nothing but costs, as these pleas admit property in the plaintiff and only traverse the allegation of taking and detaining. Rohe v. Pease, 189 Ill. 207.

Plaintiff admits the sufficiency of the third plea to sustain the right of retorno habendo, but says that if defendant’s theory is sustained it can only be sustained under the plea of usury, which must be specially pleaded, and that the fourth and fifth pleas do not incorporate any of the allegations set forth in defendant’s third plea and do not deny the right of property in plaintiff; and that, as each plea must stand by itself and form a distinct issue and evidence cannot be given under one plea to sustain another, when the trial court sustained the plea of usury it could do no more than hold that plaintiff was not entitled to maintain its replevin suit and could not order a return of the property or impose damages. We are of the opinion this misconceives the purpose of the usury pleas in this action.

The statute, which requires that the defense of usury should be pleaded, provides that the person relying upon such defense shall set up the same by plea, “or file in the cause a notice in writing” stating the nature of his defense. Defendant’s third plea went to the whole cause of action, and the usury pleas should be considered simply as notices in writing apprising the plaintiff of the nature of the defense which would be offered to support the third plea. Indeed, we are not so sure but that evidence of usury would be admissible without pleading it in a case of this sort; but however this may be, it is merely notice that the plea of property in the defendant and not in the plaintiff would be supported by evidence of a usurious contract.

None of the cases cited are in conflict with this view. Nor do we find any decided cases precisely in point. In National Cash Register Co. v. Wait, 158 Ill. App. 168, cited by plaintiff, it was held that the writ of retorno habendo was erroneously issued, as the pleas of non cepit and non detinet admitted property in the plaintiff and none of the other pleas traversed plaintiff’s allegation of right of property. In Lucas v. Gansler, 335 Ill. 274, where in addition to the pleas of non cepit and non detinet, one of a number of defendants filed an additional plea of property in himself and not in plaintiff, it was held error for the court to order a writ of retorno habendo where the verdict simply found the defendants not guilty and there was no finding determining the issue of ownership. In the case before us the defendant’s third plea put the possession in issue and the court found that the right of property was in the defendant. The order that the property be returned was proper.

Plaintiff criticises the judgment order in that there does not seem to be a formal judgment that the defendant recover of the plaintiff the property taken under the writ, but only a finding of the .issues for the defendant and that the right of property is in the defendant and that a writ of retorno habendo issue, citing American Preservers’ Co. v. Bishop, 184 Ill. 68. In Bledsoe v. Ziegenhein Bros. Furniture Co., 161 Ill. App. 146, opinion by Mr. Justice Duncan, similar language was under consideration, and the decision in the American Preservers’ Co. case was distinguished, the court saying that the differences in the two forms of judgment were only technical and that such technicalities are not now favored under our statute, which provides that no judgment will be reversed for mere error in form. Paragraph 3, ch. 7, Cahill’s Illinois Statutes; Bates v. Williams, 43 Ill. 494, and 54 Corpus Juris, page 585, section 311.

It was stipulated that on or about November 8,1928, Harry E. McCormick, the defendant, made and delivered his note to plaintiff in the sum of $1,000, payable December 8, 1929, in consideration of a loan to him of $800 payable in instalments; that to secure this, defendant made a chattel mortgage conveying the Chandler automobile in question, with a provision that if defendant would pay the note the mortgage would become void. Defendant reserved possession of the automobile. Upon failure to pay any of the instalments when they became due, plaintiff reserved the right to declare all unpaid instalments of the note immediately due, and in this event plaintiff reserved the right to take immediate possession of the automobile; that defendant paid all of the instalments up to and including the sum of $750; that on or about October 1,1929, defendant called at plaintiff’s place of business and after ascertaining that he had paid this amount did formally offer and tender payment to plaintiff the sum of $50, upon the condition that the entire debt would be liquidated and the mortgage released; that plaintiff refused to accept this tender or any other tender less than the balance of the face value of the note; that no further payments were made by the defendant and that about November 22, 1929, the automobile was seized by virtue of the writ of replevin herein and that the plaintiff has been in possession of the same from that date to the date the stipulation was signed, which was April 2, 1931.

There is no contention that this contract was not usurious. The execution and delivery to plaintiff by defendant of his note for $1,000, secured by his chattel mortgage, when in fact the loan was only $800, was a usurious contract.

Plaintiff argues that the tender being made upon condition that the chattel mortgage should be released was not a good tender. The tender was of the amount due and defendant had the right to demand a surrender of the mortgage and the note. The refusal of the plaintiff to accept the tender or any other tender of less than the unpaid balance of the $1,000 note discharged the mortgage by operation of law and reinvested the defendant with title to the property. 11 Corpus Juris, pages 679, 680, sections 452, 453; Crain v. McGoon, 86 Ill. 431. In Alexander v. Meyenberg, 112 Ill. App. 223, cited by plaintiff, the tender was made after the mortgagor had defaulted in his payments. In Blain v. Foster, 33 Ill. App. 297, the tender was made after forfeiture for nonpayment. In the present case the tender was made before there was any default.

Were the damages properly assessed? Section 22 of the Replevin Act, Cahill’s St. ch. 119, If 22, provides that where the right of property is adjudged against the plaintiff, judgment shall also be given defendant for “damages for the use” of the property from the time it was taken until it is returned. Plaintiff says that the court erroneously assessed damages before the right of property was adjudged against the plaintiff. This is not according to the record. The court found the right of property in the defendant, which was a sufficient basis for the assessment of damages.

The amount of damages allowed, $6,120, is attacked. Defendant testified that he was an oil and gasoline salesman traveling over the middle western section of the country and used his automobile in his business, covering Illinois, Indiana, Michigan, Wisconsin and parts of Iowa; that after the automobile was taken by plaintiff under the replevin writ, it cost him $18 to $20 a day for railroad fare and taxicab hire, which would have been saved had he been able to drive his own car. However, defendant asserts in his brief that he is not claiming recovery for these expenses, and it is apparent the court did not award damages upon this basis.

The original cost of the Chandler automobile to defendant was $2,300, and plaintiff argues that any award is excessive which is out of proportion to the actual value of the chattel taken. This does not necessarily follow. The value of the use of the property may in some cases exceed the value of the property itself. In Alley v. McCabe, 147 Ill. 410, replevin was brought to recover a mare alleged to be of the value of $50, and upon the trial defendant had judgment and was awarded $485 damages for the use of the property during the period of detention. In Wheeler & Wilson Mfg. Co. v. Barrett, 70 Ill. App. 222 (affirmed in 172 Ill. 610), damages of $300 were assessed for taking property worth $60. In Stein v. Traeger, 218 Ill. App. 122, the value of the property was $3,000 and damages to the amount of $23,000 were allowed. See also McCabe v. Chicago & Northwestern Ry. Co., 215 Ill. App. 99, and the quotation in that case from the interesting and pertinent remarks of the Lord Chancellor in The Mediana case, L. R. (1900) App. Cas. 113.

The question for determination is whether the court arrived at a correct amount in allowing the fair and reasonable rental value for the use of the property. In arriving at this the court estimated, from the use of the car by defendant for a period of time prior to its taking, that defendant would have averaged 90 miles a day with his car and that he had been deprived of its use for 425 days or 38,250 miles. Although these figures are questioned, yet we hold they are justified by the record.

A witness for defendant, Roy O. Kester, testified that he was the manager of the Hertz Drivurself business, which is a company engaged in renting automobiles, functioning in cities all over the United States. He testified that the customary rental charge for a Chandler automobile for a period of 30 days at an average of 100 miles, a day would be 16$ a mile. The trial court adopted this as the basis for arriving at the value of the use of the car and multiplied the mileage of 38,250 at 16$ a mile, which gives $6,120, the amount of damages allowed.

We hold that this was not the proper basis for estimating the value of the use. The rate should not have been figured at 16$ per mile, for Kester also testified that this was the rate for 30 days’ use, but that if the rental period was for one year or more the fate would be 13$ a mile. As defendant was deprived of the use of the car for -more than one year, the value should have been figured at 13$ a mile.

The court should also have taken into consideration the expenses of operation. Kester testified that the cost of operating a Chandler car, including gas, oil, depreciation and insurance, was 8%$ a mile. Deducting this from 13$ a mile we have 4%$ as the proper rental value per mile. Multiplying this by 38,250, the mileage of which defendant was deprived, gives $1,721.25.

We find no cases in Illinois where this precise point has been presented. The cases cited by defendant involve,, for the most part, property in which there was no element of expense or depreciation. In Butler v. Mehrling, 15 Ill. 488, the subject matter was horses, but the instant point was not involved. That this is the proper method of estimating damages has been held in a number of cases outside of this jurisdiction. In Bonestell v. Western Automobile Fincmce Corp., 69 Cal. App. 719, it was held that the rule for assessing damages in these cases is to find the net usable value by deducting the expenses of keeping up the property. In Brookmole v. Kinchen (Tex. Civ. App.), 253 S. W. 953, it was held that in such cases “it is the net usable value less the expenses of keeping the property, which may be recovered.” In New England Iron Works Co. v. Connecticut Co., 98 Conn. 609, it was held that to compute the damages “not only the pay of the driver, but also the cost of the other items of oil, gasoline and depreciation should have been deducted from the rental value. ’ ’ In Goldshear v. Blank, 168 N. Y. S. 628, which was a negligence case involving the loss of the use of an automobile, it was said that in estimating the damages the cost of the upkeep of the car must be deducted. In State Bank of Omaha v. Murphy, 110 Neb. 526, a replevin suit, where the right of property was found in the defendant, it was held that in the case of an automobile there was a depreciation which lessened its value materially, and that to charge against plaintiff the value of the property without deducting-the depreciation was improper. To the same effect is Puckett v. Hopkins, 63 Mont. 137.

If defendant had had the use of his car for the period it was taken from him, the costs of oil, gasoline, insuranee and depreciation would have been against him. How, then, can any just estimate of the value of the use of the car be made which does not charge him with these items? Not to do so would in effect be based upon the erroneous supposition that when defendant ran the car he was free from any expenses for upkeep.

For the reasons indicated we hold that there was error in the finding of the court as to the amount of damages; that the correct amount is $1,721.25. If, therefore, the defendant will remit from the amount of judgment, within ten days from this date, $4,398.75, leaving the judgment to stand at $1,721.25, it will be affirmed; otherwise, reversed and remanded. The cost of this appeal should be taxed against the defendant.

Affirmed upon remittitur; otherwise reversed and remanded.

O’Connor, P. J., concurs.

Matchett, J., dissenting:

I think the amount allowed for damages is still excessive.


author: Mr. Justice Matchett

text:
    Allen W. McConnell, Appellee, v. Brace-Beluche & Company, Defendant. Peacock Cleaners and Dyers, Ltd., Garnishee. S. F. Bowser & Company, Inc., Appellant.
    Gen. No. 35,320.

      Opinion filed December 28, 1931.
    William Rosenthal, for appellant; Irving Break-stone, of counsel.
    Samuel J. Nordorf, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by intervening petitioner, in garnishment proceedings begun by attachment, from an order and judgment awarding the fund in controversy to plaintiff. The facts in the case are not disputed. One McConnell sued out a writ of attachment in the municipal court of Chicago against Brace-Beluche & Company of Buffalo, New York, claiming that an indebtedness was due to him in the sum of $798.38. Peacock Cleaners & Dyers, Ltd., a corporation, was summoned as garnishee and answered that at the time of the service of the writ it was indebted to defendant debtor, Brace-Beluche & Company, in the sum of $909.26. The answer, however, disclosed that this fund was claimed by S- F. Bowser & Company of Fort Wayne, Indiana. Thereafter Bowser & Company filed an intervening petition claiming the fund by virtue of a bill of sale dated December 18, 1930, and the assignment to it on that date of all the accounts receivable of Brace-Beluche & Company. The petition prayed that the fund be declared the property of Bowser & Company. Plaintiff answered, alleging that the bill of sale of December 18, 1930, was made for the purpose of hindering-, delaying and defrauding the creditors, and that Brace-Beluche & Company was at that time insolvent.

Interrogatories were filed, to which answers were demanded. The evidence was for the most part stipulated. The court found the issues in favor of plaintiff and against Brace-Beluche & Company, and it also found the issues against S. F. Bowser & Company, intervening petitioner, and that the fund in the hands of the garnishee belonged to plaintiff, and entered judgment on the findings. This appeal is prosecuted by S. F. Bowser & Company.

It is insisted by plaintiff (and the court rendered judgment in favor of plaintiff upon the theory) that the bill of sale made December 18, 1930, by BraceBeluche & Company was fraudulent and void by reason of the provisions of section 44, chapter 42 of the Personal Property Law of the State of New York, Cahill’s N. Y. Consolidated Laws, as amended by the laws of 1914, chapter 507. That section, which it is conceded is in substance the same as the Bulk Sales Law of Illinois, Cahill’s St. ch. 121a, Iffi 1, 2 (SmithHurd’s Ill. Rev. Stats. 1931, chap. 121%, secs. 78 and 79), in substance provides that the sale, transfer or assignment in bulk of any part or the whole of a stock of merchandise, or merchandise and fixtures pertaining to the conducting of the business of the seller, transferer or assignor, otherwise than in the ordinary course of trade, and in the regular prosecution of the business, shall be void as against the creditors of the seller, transferer or assignor “unless the seller, transferer or assignor and the purchaser, transferee or assignee shall at least five days before the sale make a full and detailed inventory, showing the quantity and, so far as possible with the exercise of reasonable diligence, the cost price to the seller, transferer or assignor of each article to be included in the sale; and unless the purchaser, transferee or assignee demand and receive from the seller, transferer or assignor a written list of names and addresses of the creditors of the seller, transferer or-assignor with the amount of the indebtedness due or owing to each and certified by the seller, transferer or assignor under oath to be a full, accurate and complete list of his creditors and of his indebtedness; and unless the purchaser, transferee or assignee shall at least five days before taking possession of such merchandise, or merchandise and fixtures, or paying therefor, notify personally or by registered mail every creditor whose name and address are stated in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof.”

The record discloses that S. F. Bowser & Company at the time of the. purchase in bulk of the business of Brace-Beluche & Company demanded and received from the vendor a written statement purporting to give a list of the names and addresses of the creditors; that such list was duly certified under oath to be full, accurate and complete; that the vendor and vendee made an inventory and that.five days before taking possession of the merchandise or paying for the same, Bowser & Company sent a notice to each and every creditor whose name and address were given in the list so furnished it, and that thereafter in good faith Bowser & Company paid over to the vendor the purchase price agreed on without notice or reason to suspect that the vendor had omitted from the sworn list any names of its creditors. It does appear, however, that such list did not contain the name of. plaintiff in this case and that he therefore did not receive notice that the sale was about to be consummated.

The question, therefore, for decision is whether under the New York Bulk Sales Law, properly construed, a sale is made void or voidable either in whole or in part by reason of the fact that the seller omitted the name of one of the creditors, when the purchaser acting in good faith demands a list of creditors properly verified and sends notice to each creditor whose name appears upon such list.

The intervening petitioner contends that it is not void either in whole or in part. A decision of the case requires a construction of the New York statute, which, as we have already stated, is conceded to be similar to the statute of Illinois.

The highest courts of both New. York and Illinois were at first reluctant to concede that legislation of this kind was constitutional. Wright v. Hart, 182 N. Y. 330; Off & Co. v. Morehead, 235 Ill. 40. The courts of both States, however, have since acceded to the overwhelming weight of judicial authority to the effect that such legislation is constitutional. Klein v. Maravelas, 219 N. Y. 383; Kidd, Hater, & Price Co. v. Musselman Grocer Co., 217 U. S. 461; Johnson Co. v. Beloosky, 263 Ill. 363. That such statutes, however, are derogatory to the common law and penal in their nature and therefore must be strictly construed, is, we think, established by the weight of authority (Mott v. Reeves, 125 Misc. 511, affirmed in 217 App. Div. 718, 246 N. Y. 567; 27 Corp. Juris, sec. 883, p. 875), although of course the statute should if possible be construed in such a way as to advance the remedy which it was designed to give. (Talty v. Schoenholz, 323 Ill. 232; Cardiff Gypsum Plaster Co. v. Hales Coal & Material Co., 239 Ill. App. 16, and see the dissenting opinion in Wright v. Hart, 182 N. Y. 330, approved by the Supreme Court in Lemieux v. Young, 211 U. S. 489.)

The primary purpose of the judicial construction of statutes is to ascertain the intention of the legislature, and this intention must, of course, be determined by the language used in the statute. Section 44 of chapter 42 of the Personal Property Law of New York, it will be noticed, does not make a sale in bulk entirely void but only voidable as against the creditors of the seller in case certain conditions prescribed by the act are not performed. The act prescribed certain things which must be done by both the seller and the purchaser. They must at least five days before the sale make an inventory showing the quantity and (the statute adds) “so far as possible with the exercise of reasonable diligence, the cost price to the seller, transferer or assignor of each article included in the sale.” These duties seem to be put upon the vendor and the vendee jointly. The act next prescribes the conditions to be performed by the purchaser. He must demand from the seller a written list of the names and addresses of the creditors with the amount of indebtedness due or owing to each, and the act makes it his duty to see that this written list is certified by the seller under oath to be full, accurate and complete. Next, the purchaser shall, the statute says, at least five days before taking possession or paying for the goods, notify personally or by registered mail every creditor whose name and address are stated in the list, “or of which he has knowledge,” of the proposed sale, price, terms and conditions. It will be noticed that the duty of making up a written list of the names and addresses of the creditors is placed upon the seller and, unlike the duty of preparing the inventory, is not made the joint duty of the seller and the purchaser. It is again significant that the statute does not state that it is the duty of the purchaser to notify all the creditors, but he is specifically required to notify two classes of creditors — first, those who are upon the list he receives from the seller, and, second, those of which he has knowledge. In other words, the statute apparently requires the utmost good faith, but the language used is entirely inconsistent with the idea that it was the intention of the legislature to hold the purchaser responsible for the failure of the seller to include, either by design or otherwise, all the creditors in the list he gives to the purchaser. The construction for which plaintiff contends it is apparent would render extremely precarious the purchase of merchandise in bulk, and it seems that if the legislature had intended to bring about that result it would have said so. It did not do this, but on the contrary used language which when carefully analyzed shows, we think, a contrary intention.

Such seems to have been the construction put upon this act by the courts of New York, as appears from the opinion of the Supreme Court of that State in Rugen v. Mulvihill, 147 N. Y. S. 404. In that case the vendor was indebted to a creditor and the creditor recovered a judgment against him the day before he made the sale to plaintiff. The vendor did not mention this debt to ‘ plaintiff. Three days after the sale an execution issued on the judgment, and was levied upon the stock and fixtures sold. Under duress of this execution the plaintiff paid the judgment under protest and sued to recover the money thus paid. Upon the trial the judge excluded all evidence as to the value of the goods sold and as to the portion of the consideration that was paid for the stock. The Supreme Court held that this was error because the adequacy of the price paid was an essential element in determining whether the sale was bona fide and because such evidence would have overcome the presumption against the sale being bona fide by reason of the provisions of section 44 of the Personal Property Law. The court said that the vendee, plaintiff, made inquiry in good faith as to the names of the creditors, was given a list and advanced the money to pay them, and that all the creditors whose names were on the list had been paid; that it was necessary to establish an intent to defraud on the part of both the vendor and the vendee; that the sale of goods in bulk without complying with the terms of the statute raised a presumption of fraudulent intent on the part of the vendee, which, if not overcome by proof became conclusive; that the vendee did show his good faith in the transaction, and that he had no intent to defraud the creditors, but on the contrary provided for the payment of their debts.' The opinion points out that if the vendor made a false statement, penalty therefor was provided by the act. The judgment was reversed and a new trial granted.

It would, seem, therefore, that the construction put upon this act by the municipal court of Chicago was contrary to the construction put thereon by the courts of New York, by whose decisions we are bound. The conclusions of the courts of this State in construing our own similar act seem to be in harmony with those of the courts of New York, as would appear from an examination of the case of Bione v. Bell, 221 Ill. App. 434. In that case it appeared that the purchaser, as here, demanded a list of the creditors and that the vendor omitted from the list a. creditor to whom he was indebted for the purchase price of a player piano. After the sale was completed the creditor replevied the piano, and upon trial the court held that the piano was the property of the vendee and entered judgment accordingly. The opinion of the court states that' a stipulation entered into by the parties showed that the vendee did all that was required of him to comply with the Bulk Sales Law and that nothing appeared to indicate that he knew of the omission of the account of the seller of the player piano; that the vendee “did all he was required to do by this law and there is not even a suggestion that he acted in bad faith.” The judgment of the trial court was affirmed.

These two decisions — one by the Supreme Court of New York where the transaction here in question took place, the other by the Appellate Court of our own State — would seem to compel a construction of this statute contrary to that given it by the trial court; but we think.it may well be added that such is the construction given to similar acts by the weight of authority in this country. Coach v. Gage, 70 Ore. 182, 138 Pac. 847; Glantz v. Gardiner, 40 R. I. 297, L. R. A. 1917 F 226; International Silver Co. v. Hull & Co., 140 Ga. 10, 78 S. E. 609, 45 L. R A. (N. S.) 492; McKelvey v. Schapp & Sons Drug Co., 143 Ark. 477, 220 S. W. 827. We are aware that there are decisions to the contrary, such as Walton v. Walter Fisher Co., 146 Miss. 291; Kline v. Sims, 149 Miss. 154; Rabalsky v. Levenson, 221 Mass. 289; and Williams v. Crowdus Drug Co. (Tex. Civ. App.), 167 S. W. 187. However, it would not be difficult to distinguish these cases from this one upon the facts. Thus, in Rabalsky v. Levenson, it appeared that both the vendor and the vendee under the advice of counsel understood the law of Massachusetts to require notice to “merchandising creditors” alone, and the principal question decided in that case was that the law was not limited to such creditors. In Williams v. Crowdus Drug Co., the vendee failed to require the verification of the list furnished by the vendor. The other cases are also distinguishable upon quite similar grounds, although the language of these opinions commits the courts of those States to a construction which we must decline to follow.

In Williston on Sales, 2nd ed., sec. 643, p. 1616, that distinguished author says:

‘ ‘ The effect of a failure to comply with the statutory requirements varies in different jurisdictions. In some, as in Connecticut, Indiana, Maine, Montana, Texas, Michigan, Tennessee, West Virginia, the transaction is made wholly void against creditors without regard to actual fraud. In other states, as Idaho, Oklahoma, Oregon, the transaction is only presumptively fraudulent, and good faith may be shown. But even under the most rigid statutes, it is probable that an innocent purchaser for value from a buyer who has failed to comply with the bulk sales law, would be protected.” The author cites a large number of authorities from different states.

We hold, therefore, that the intervening petitioner, S. F. Bowser & Company, Inc., is entitled to the fund disclosed by the answer of the garnishee, and the judgment is therefore reversed and the cause remanded with directions to the trial court to award the said fund to S. F. Bowser & Company, Inc.

Reversed and remanded with directions.

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


text:
    Ben Meyer, Appellee, v. Morris Ratsky, Appellant.
    Gen. No. 35,467.
    Opinion filed December 28, 1931.
    Rehearing denied January 11, 1932.
    John 0. Q-ekas, for appellant.
    Church, Traxler & Kennedy, for appellee; Dean Lake Traxler and Len Young Smith, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

On May 9, 1931, plaintiff Meyer filed a complaint in forcible detainer in the municipal court of Chicago against defendant Batsky. There was a trial by the court without a jury, a finding that defendant unlawfully withheld possession of the premises, the right to which was in plaintiff, and judgment was entered that plaintiff recover the same. Defendant has appealed to this court.

The bill of exceptions show's that there was a motion by defendant to dismiss the suit on the ground that the court had no jurisdiction of the subject matter as shown by the complaint, for the reason that the premises were not described in such manner as to specifically bring the subject matter before the court. There was also a motion by defendant to quash the summons and dismiss the suit for the alleged reason that the complaint did not state specifically that the property was within the jurisdiction of the municipal court in the First District where the suit was brought. Defendant contends upon this appeal that these motions should have been granted. He argues in the first place that under the statute a suit in forcible detainer in the municipal court of Chicago must be brought in the district in which the property is located and that the complaint must aver the fact that it is located in the district in order to state a cause of action. Several sections of the Municipal Court Act are cited, and this contention requires a construction of the same.

Section 1 of that act, Cahill’s St. ch. 37, U 389 (SmithHurd’s Ill. Bev. Stats. 1929, chap. 37, sec. 356), provides in substance that the municipal court of Chicago shall be established and that its jurisdiction shall be exercised in the manner thereafter provided. Section 2 of the same act divides the cases of which the municipal court shall have jurisdiction into six different classes. Among fourth class of cases subdivision “d” of the paragraph names “all actions of forcible detainer” as one of the class. Section 29 of the act, Ca-hill’s St. ch. 37, If 417, Smith-Hurd, ch. 37, sec. 384, provides, “Cases of the fourth class mentioned in section two (2) of this Act "shall be brought and prosecuted in the district in which the defendant . . . resides or is found . . . .” Another paragraph of this section provides in substance that the requirement that the defendant, if there be but one defendant, or one of the defendants if there be more than one defendant, must reside or be found within the district in which the suit is brought, shall not apply to certain actions named, attachment or replevin suits, cases of distress for rent, etc., brought against nonresidents of the State. The statute says that such suits may be brought “in any district, when any property of the defendant is levied upon, replevined (replevied) or distrained within such district, or any garnishee resides or. is found in such district. ’ ’ The statute adds, “Nor shall it apply to forcible entry and detainer suits in which the defendants do not reside or cannot be found within the city of Chicago, which suits may be brought in any district in which the property, the possession of which is sought to be recovered, is situated, and notice may be given by publication in the manner prescribed by this Act. ’ ’ The section further provides that when it is made to appear to the court upon the complaint of any defendant that a suit has been improperly brought therein, the court shall not be required on that account to dismiss the suit, if the municipal court in any district could properly have jurisdiction thereof, but that in such case the court may cause the suit to be transferred to the proper district and the court in that district shall then proceed as if the same had been originally commenced in that district.

As we read this statute, a defendant in a forcible entry and detainer suit may, where the property in controversy is situated in the City of Chicago, be sued in any district where the defendant resides or may be found, and where the defendant cannot be found or is a nonresident, the suit may be brought in the district in which the property is located. In a case, then, where, as it here appears, defendant is found within the City of. Chicago, the court has jurisdiction to proceed in any district where defendant has been found and may enter a valid judgment for the possession of the premises without regard to whether the same are situated in the district.

Defendant has cited a large number of cases to the propositions that an action in forcible detainer is a local action in its nature; that the right to sue for possession in the municipal court is purely statutory, and that the rights granted under the statute are to be strictly construed. It is unnecessary to review these cases because all the propositions are conceded. The only question here is to determine by proper construction the intention of the legislature in the enactment of the statute, and we think the construction must be as above stated.

Defendant, however, further contends that-the complaint is insufficient in that it failed to fully and properly describe the premises concerning which the suit was brought.

The venue in the case is as follows:

“State of Illinois 1 City of Chicago Iss. First District j
The Municipal Court of Chicago.”

The complaint states that Meyer, plaintiff, complains that he “is entitled to the possession of the following described premises in said City, to-wit: Automobile Service Station located at the Northeast corner of West Jackson Boulevard, also known as No. 918 West Jackson Boulevard.” The same description of the premises appears in the summons which was served upon defendant, and the judgment of the court is that “the plaintiff have and recover of and from the defendant, Morris Ratsky, possession of the premises described in the complaint herein, known as Automobile Service Station, 918 West Jackson Boulevard, and that a writ of restitution issue therefor.”

We think that under well considered decisions the description is sufficient. In the case of Cairo & St. Louis R. Co. v. Wiggins Ferry Co., 82 Ill. 230, it was contended that in a suit of this character the premises were not described with reasonable certainty, but the court said: “Any description by which the premises could readily be identified and located, is all that could be required. That has been given, and we consider it sufficient.”

In Szulerecki v. Oppenheimer, 218 Ill. App. 508, affirmed in 299 Ill. 68, a description substantially similar to that in this case was held to be sufficient. It is unnecessary to review at length cases which are cited to the contrary, since the descriptions in those cases are not at all similar.

It is next urged that the proof shows plaintiff to be without standing to maintain this suit. It appears that plaintiff and his partner, Waggoner, were lessees of these premises from the original lessors, Goldschmidt et al., and that the lease from plaintiff under which defendant entered was for the full term of these original leases; that Waggoner consented to the lease made' to defendant; and it is strenuously urged that the effect in law was to divest plaintiff of any reversionary interest, merge the lease from him to defendant with the leases from Goldschmidt et ál., the original lessors, and render defendant liable to Goldschmidt et al., as assignees. It is urged that therefore Goldschmidt et al., not Meyer, is the proper plaintiff.

The contention is a novel one, namely, that at the very moment the lease to defendant was executed it passed out of existence by merger in the original leases, leaving plaintiff without any rights against defendant thereunder. Defendant cites a large number of cases: Sexton v. Chicago Storage Co., 129 Ill. 318; Springer v. Chicago Real Estate Loan & Trust Co., 202 Ill. 17; Taylor v. Marshall, 255 Ill. 545; Lyon v. Moore, 259 Ill. 23. These cases all sustain the general rule as stated by Taylor on Landlord and Tenant, 7th ed. 109, notes, 16, n.5, and quoted with approval in the Sexton case:

“The effect, therefore, of a demise, by a lessee, for a period equal to or exceeding his whole term, is to divest him of any reversionary right, and render his lessee liable, as assignee, to the original lessor; but, at the same time, the relation of landlord and tenant is created between the parties to the second demise, if they so intended.”

The lengthy writings which are here in evidence show that there was no intention by the parties to destroy the relation of landlord and tenant created by the lease between plaintiff and defendant. Indeed, the assignment of it was made conditional upon the performance of certain conditions which it does not appear have been performed. We do not doubt the effect of this sublease was to make defendant liable to the original lessors at their option for the rent, but it does not follow that defendant could in an action of this kind deny his landlord’s title. That rule is so thoroughly established that it is unnecessary to cite authorities.

The judgment , of the trial court will be affirmed.

J' Affirmed.

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


text:
    Frederick K. Hamilton and Max Kushin for the Use of Edward Steinborn, Appellant, v. Thayers Eating Houses, Inc., Appellee.
    Gen. No. 35,515.

      Opinion filed December 28, 1931.
    Lapkoff & Weinstein, for appellant; J. Kentner Elliott, of counsel.
    Joseph F. Grossman, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Steinborn, a judgment creditor of Hamilton and Kushin, summoned the defendant corporation as garnishee. The garnishee answered. Steinborn made a motion to strike the answer. The motion was denied, and Steinborn electing to stand by his motion, an order was entered discharging the garnishee; From this order Steinborn prosecutes this appeal. The question for decision is whether the court erred in entering the order discharging the garnishee.

The answer averred that neither at the time of the service of the writ nor thereafter did the garnishee have in its possession, charge or control, any moneys, choses in action, credits, effects, goods, chattels, rights, lands or tenements owned by the debtors or in which they were interested. Further answering, it was averred that April 25, 1931, the garnishee entered into a contract with Hamilton for painting and decorating, for which the garnishee agreed to pay $450; that April 25, 1931, Hamilton completed all the labor and furnished all the materials as required by the contract; that April 30, 1931, the garnishee summons was served, and that thereafter and within 60 days from the completion of the last work on the contract on May 1,1931, Hamilton at the request of the garnishee furnished.a sworn contractor’s statement of all moneys due or unpaid and to become due to material dealers, subcontractors, mechanics and workmen in his employ in the performance of the contract; that this statement set forth that there were due certain sums of money totaling $626.40 to persons named for painting, and that by virtue ther'eof these persons claimed they were entitled to mechanics’ liens upon the interest of the garnishee in its leasehold interest in the premises upon which the work was done; that thereafter on May 1, 1931, the garnishee paid to these persons named in the statement of the contractor in consideration of waivers of their respective liens the sums said to be due in the statement.to the total amount of $450, and that at the date of the answer there was no money due to Hamilton from the garnishee.

The judgment creditor complains that no copy of the statement of the contractor was made a part thereof or presented with garnishee’s answer; that the answer contents itself with alleging that it appeared from the statement that certain sums of money were due to six named persons for painting; that the aggregate of these sums was $626.40 or $176 more than the total contract price mentioned in the answer, but that the answer is entirely silent as to any of those matters or things from which a court might determine whether or not the six parties had performed services or had furnished materials or in what period of time and whether the several items were the fair, usual and reasonable price or were definite amounts agreed to be paid. The judgment creditor says that the answer then recites the conclusion that these persons were entitled to a lien, but that if any of these parties made in truth and fact a claim for lien as provided by the statute, the answer is entirely silent on the subject; that it appears from the answer that there was not enough money to pay all the alleged claims in full and that the garnishee in mailing payment divided up the money to suit itself. It is urged upon the authority of Buckingham v. Shoyer, 86 Ill. App. 364, that a garnishee upon service of the writ becomes automatically the agent of the court as to moneys due the judgment debtor; that it follows therefore that it is for the court to adjudicate and not for the garnishee to determine to whom the sum of money involved in the garnishment belongs when there are conflicting claims, and that to hold otherwise is to vest in every garnishee the judicial powers which by law belong only to the court. It is urged that it was the duty of the garnishee to withhold payment of the funds in hand and by its answer in the garnishment proceeding or by an appropriate proceeding of interpleader bring to the attention of the court the fact that conflicting claims exist as to the funds in hand and await the adjudication of these conflicting claims by the court. It is contended that the payments made by the garnishee were purely voluntary acts and are not a defense to the suit in garnishment. To this • point the judgment creditor cites Green v. Johnson, 151 Ill. App. 63.

The motion to strike seems to have been only general in its nature and did not point out any defects in the answer which under a different system of pleading would have amounted to a special demurrer. The objections therefore cannot avail in this court. If the judgment creditor desired a more specific statement as to the facts he could have obtained it by submitting interrogatories which would have required full and sufficient answer in these respects; or if he wished to deny any fact set up in the answer he could have contested the same. He did not do this but made a motion to strike the answer and when his motion was denied elected to stand by it. Section 21 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, 21 (Smith-Hurd’s Ill. Eev. Stats. 1931, chap. 82, sec. 21), gives to mechanics and workmen employed by a contractor a lien ‘ ‘ on the pioneys or other considerations due or to become due from the owner under the original contract”; and section 5 of the same act, Cahill’s St. ch. 82, H 5, provides in substance that it shall be the duty of the contractor to give the owner, and the duty of the owner to require of the contractor before the owner shall pay or cause to be paid to the contractor or to his order any moneys or other consideration due or to become due, or advance any moneys to the contractor, “a statement in writing, under oath or verified by affidavit, of the names of all parties furnishing materials and labor, and of the amounts due or to become due each.” Section 21, Cahill’s St. ch. 82, If 21, provides that where the contractor’s statement, made as provided in section 5, shows the amount to be paid to the subcontractor or party furnishing material and the subcontract is completed, such party “shall have a lien therefor to the extent of the amount named in such statement or notice.”

In Nelson v. Urban, 236 Ill. App. 447, this court held in conformity with that statute that the rights of a subcontractor thereunder were superior to those of the creditors of the contractor, and that the reason therefor was that by virtue of section 21 the lien attached as of the date of the original contract.

Section 27 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, ji 27, specifically provides that after the contractor ’s statement has been made it is the duty of the owner to retain sufficient money to pay the claim, and payment to the contractor is expressly declared to be illegal.

It logically follows, of course, that since the garnishee could not pay to Hamilton he could not pay to Hamilton’s creditor, ■ Steinborn. Green v. Johnson, 151 Ill. App. 63, on which the judgment creditor relies, arose under a different statute and is clearly distinguishable upon the facts, since there (as was stated in the opinion) no notice was given as required by statute in order to establish or claim a lien. In this case while notice was not given, the statement was required rendering the notice unnecessary and perfecting the lien in favor of the parties doing the work. The answer was sufficient in that it (1) set up a contract which antedated the service of the garnishee summons, (2) alleged the performance of this contract, and (3) averred a sworn statement of the contractor as to the amount due and to whom due. Section 24 of the act referring to notice, Cahill’s St. ch. 82, H 24, specifically prescribes that ‘ ‘ such notice shall not be necessary when the sworn statement of the contractor or subcontractor provided for herein shall serve to give the owner notice of the amount due and to whom due. . . .” The garnishee says that the reason for the apparent preference as between the parties named in the statement is that those paid were laborers, those not paid were materialmen, and that the garnishee followed section 27 of the Mechanics’ Liens Act in making this preference. That fact was not set up in the answer but is, we think, immaterial as between the garnisher and the garnishee. Whether the claims were those of laborers or materialmen, their liens under the statute were superior to the rights of the creditors of the contractor. (Nelson v. Urban, 236 Ill. App. 447.)

The judgment of the trial court is therefore affirmed.

Affirmed.

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