text:
    Chicago Discount Corporation et al., Appellees, v. Ernest Palmer et al., Appellants.
    Gen. No. 37,653.

      Opinion filed February 13, 1935.
    Otto Keener, Attorney General, and John B. Harris, Assistant Attorney General, for appellants.
    Fagenholz &• Kaplan and Jacob G. Grossberg, all of Chicago, for appellees.
   Mr. Justice Wilson

delivered the opinion of the court.

The plaintiff, Chicago Discount Corporation and others, filed their third amended bill of complaint in the circuit court of Cook county praying for an injunction to restrain Ernest Palmer, Director of Insurance of the State of Illinois, and Hiram McCullough, Supervisor of the Division of Small Loans of that department, from enforcing a certain rule or regulation promulgated by them for the purpose of regulating and restricting the business of making small loans. Plaintiffs are engaged in this business and are licensed under the provisions of an act of the General Assembly of the State of Illinois entitled, “An Act to license and regulate the business of making loans in sums of three hundred dollars ($300) or less, etc.,” approved June 14, 1917, and known as the Small Loans Act, Cahill’s St. ch. 74, If 27 et seq.

The rule or regulation promulgated by the defendants is as follows:

“17i. Notes taken by licensees for loans made under the Small Loans Act are not negotiable. They may not be pledged or used as collateral, either with or without actual delivery to a pledgee, except that they may be pledged or hypothecated to another licensee under the Small Loans Act. In case of pledge or hypothecation to such licensee each note shall bear on its face, legibly printed or typed, the following statement:

“ ‘This note is non-negotiable but may be pledged to a licensee under the “Small Loans Act of Illinois” as collateral security. If so pledged, any payment made to the payee, either of principal or interest, upon the debt evidenced by this note, shall be considered and construed as a payment on this note, the same as though it were still in the possession and under the control of the payee named herein; .and the person holding this note as collateral security ■ hereby makes said payee his agent to accept and receive payments hereon, either of principal or of interest. ’ ’ ’

The original power to supervise persons or corporations engaged in the small loan business was originally placed in the Department of Trade and Commerce by the General Assembly, but since the passage of the act the Department of Insurance of the State of Illinois has been created as successor to the Department of Trade and Commerce.

The Small Loans Act provides that it shall be unlawful to make any loan of money, credit, goods or things in action in the amount or value of $300 or less, whether secured or unsecured, and to charge, contract for or receive a greater rate of interest than seven per cent per annum without a license from the Department of Trade and Commerce. Provision is then made fixing the amount of the license fee, the requirement of a bond, the time period of the license, the power of the Department of Trade and Commerce to require an additional bond, a penalty for violation of the act, and for the purpose of discovering violations of the act, the Department of Trade and Commerce may at any time investigate the loans or business of every licensee, and shall have access to the books, papers, records and vaults of such licensee, and have authority to examine, under oath, all persons whose testimony it may require relative to such business, and the licensee shall keep such books and records as in the opinion of the department will enable it to determine whether or not the provisions of the act are observed.

Certain other provisions in the act pertain to the manner in which the loan business shall be operated and limits the amount of the assignment of wages or salary to 50 per cent of the borrower’s wages or salary.

The constitutionality of the enactment has been passed upon by the Supreme Court of this State in the case of People v. Stokes, 281 Ill. 159, and its constitutionality sustained.

Upon the docketing of the appeal in this case in this court, plaintiffs filed their motion in writing, asking to have the cause transferred to the Supreme Court of this State on the ground that a constitutional question was involved. This motion was denied. It was the opinion of this court in its consideration of the motion that the act had been declared constitutional by the Supreme Court and that the only question before us was one involving the power of the Director of Insurance under the law, as enacted, to pass the particular rule or regulation in question.

Where the construction of a statute arises, the case in the first instance goes to the Appellate Court. In cases involving merely the construction of a. statute and its validity, the Appellate Court has and will retail? jurisdiction. Illinois State Board of Health v. People 181 Ill. 512.

The powers of the Department of Trade and Commerce now exercised by the Director of Insurance of this State under the act, are fully defined in the opinion of People v. Stokes, 281 Ill. 159, where the court in its opinion says:

“It is further urged that the act is void as it confers judicial powers upon the department of trade and commerce with respect to requiring an additional bond if in its opinion the bond given is insecure, exhausted or otherwise doubtful, vests it with power to revoke the license if any licensee violates any of the provisions of the act, and empowers it to call and examine persons on oath for the purpose of ascertaining whether or not the licensee is complying with the act. While the powers conferred are in a sense of a judicial nature, they are not judicial powers in the sense those words are used in our constitution. No power is conferred upon the department to adjudicate upon the rights and interests of parties or to construe and apply the law. The sole power granted is to license and regulate the business, which carries with it, as a necessary incident, the right to determine whether or not the applicant for such license possesses the qualifications required by law and is a fit person to conduct such business. While the determination of such question requires the exercise of judgment and discretion, and to that extent is of a judicial nature, it is not judicial power as contemplated by the provisions of the constitution referred to. The only power the department has is to grant licenses and approve the bonds, and after a license has been granted to make an investigation for the purpose of determining whether or not the bond given is sufficient and whether or not the licensee is conducting the business in the manner required by the act. For the purpose of ascertaining these matters the department is vested with the power of calling witnesses and examining them on oath, and of examining the books, papers, records, etc., of the licensee, and when it is found the licensee is an unfit person by reason of his violating the act, to revoke such license. But the act confers no power upon such department to determine any other matters or questions, except, alone, the single question as to whether or not the licensee is complying with the provisions of such act. The granting of such powers to ministerial officers has never been held to invest them with judicial powers, within the meaning of our constitution. (People v. Apfelbaum, 251 Ill. 18; Block v. City of Chicago, 239 id. 251; Klafter v. Examiners of Architects, 259 id. 15.)”

The powers of the Directors of Insurance, as defined in this opinion, are limited to the sole question as to whether or not the licensee is complying with the provisions of the act. These powers are ministerial and do not vest this department with the right to limit or qualify the rights or obligations of the licensee as defined by the General Assembly. We agree thoroughly with the position taken by counsel for the defendant, namely, that the act was passed in order to remedy an iniquitous situation under which necessitous borrowers of small amounts were required to pay excessive rates of interest to unscrupulous lenders. We also agree that the act was one most salutary in its purpose, but we are of the opinion that the enactment cannot be extended beyond the legislative intent and purpose by judicial construction. The regulation in question undertakes to make loans made under the Small Loans Act not negotiable and the paper executed at the time of the making of the loan not transferable by negotiation. If the regulation in question should be upheld, it would create a situation which would limit the lender to his or its individual capital and take from the licensee the power to do business on credit by hypothecating the paper of the borrower with the banks and other financial interests. The legislation would enlarge the scope of the enactment and it necessarily would become a matter of substance and not a mere regulation as to form.

There is nothing in the act in our opinion, either express or by implication, which would confer upon the Department of Insurance the right attempted to be exercised by it in promulgating the regulation. If it had been the purpose of the General Assembly to have restricted the rights of the licensee in this regard, it would have been incorporated in the enactment. If such a restriction is deemed advisable, the legislature has the power by amendment to incorporate the restriction in an amendment to the act. Such an enactment as that in question will not be extended by judicial construction, especially where the language of the act is clear and has already been interpreted by our Supreme Court.

In the case of Illinois Publishing & Printing Co. v. Industrial Commission, 299 Ill. 189, in construing the Compensation Act, the rule was announced in clear and unequivocal terms by the Supreme Court as follows: “The language of the act is clear and is not open to construction. It means just what it says — the provisions of this act shall apply automatically and without election to all employers and their employees engaged in enterprises or businesses declared to be extrahazardous — and the court has no right to read into the statute words that are not found therein, either by express inclusion or by fair implication. The plain and obvious meaning of the language used by the legislature is generally the safest guide to follow in construing any act. Seeking hidden meanings at variance with the language used is a perilous undertaking, which is as apt to lead to an amendment of a law by judicial construction as to arrive at the actual thought in the legislative mind. ’ ’

The rule or regulation adopted by the Department of Insurance is one of substance and not of form. The Supreme Court of this State in the case of Great United Mut. Benefit Ass’n v. Palmer, 358 Ill. 276, in its opinion says: “What, then, is the proper construction of the words, ‘which certificate shall be approved as to form by the Director of Trade and Commerce1?’ The clause which is complained of merely confers upon the Director of Insurance an administrative and supervisory control over the form of certificates of insurance, and does not give, nor even purport to give, him any authority as to the substance of the certificates. ‘Form’ is the antithesis of, and is in opposition to, ‘substance.’ (State v. Japone (Iowa), 209 N. W. 468; Thibodeaux v. Thibodeaux, 112 La. 906, 36 So. 800.) Substance is only that which is essential. (State v. Burgdoerfer, 107 Mo. 1, 17 S. W. 646.) It is our conclusion that the clause complained of was intended by the legislature to give to the Director of Insurance exactly what the act says it gives to him — i. e., a supervisory control over the form of insurance certificates but no authority to prescribe the substance thereof. So construed, the act is valid and constitutional.”

In view of the language used in the case of People v. Stokes, supra, and the cases following and referred to, we are of the opinion that the powers of the Department of Insurance are limited under the Small Loans Act, to ministerial duties in seeing to it that the licensee complied with the act in the manner prescribed therein. The rule complained against is an attempt to create an additional prohibition against the licensee and one not included in the enactment. This regulation is, therefore, in our opinion, contrary to the express powers or duties granted that department by the enactment and, consequently, void.

For the reasons stated in this opinion the decree of the circuit court is affirmed.

Decree affirmed.

Hebel, P. J., and Hall, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor McSurely, J., Matohett, J.,

license: Public Domain

text:
    Wemple State Bank, Appellant, v. Continental Illinois Company, Appellee.
    Gen. No. 37,722.
    Hatchett, J., dissenting.
    Opinion filed February 25, 1935.
    Y. D. McConnell and Owen Ball, both of Chicago, for appellant.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellee; Frederic Burnham and Sherwood K. Platt, both of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action to recover damages against the defendant for fraud and deceit. Defendant’s demurrer to the declaration was sustained, and plaintiff having elected to stand by its declaration, the suit was dismissed at plaintiff’s cost, and it appeals.

The question for decision is, Does any one of the four counts of the declaration state a cause of action? In each of the four counts it is alleged that plaintiff is a banking corporation conducting a bank at Waverly, Illinois, a town of about 1,300 inhabitants; that plaintiff and its predecessors have been conducting a bank for a number of years; that for many years prior to September, 1931, it was a depositor in the Continental Illinois Bank and Trust Company of Chicago, that bank being its Chicago correspondent; that the Continental Bank had been engaged in the business of selling securities on its own account, and that plaintiff bank had from time to time purchased securities from the Continental Bank; that to induce plaintiff to buy such securities, the Continental Bank represented to plaintiff that it had extraordinary knowledge of the value of securities, having access to sources of information not available to plaintiff, and stated it would assist plaintiff in the selection and supervision of. investments, and invited plaintiff from time to time to submit to it plaintiff’s list of securities for such advice, and to call upon it whenever plaintiff desired such advice; that plaintiff, relying upon such representations, did purchase many thousands of dollars of securities from the Continental Bank which resulted in profit to the Continental Bank; that from time to time plaintiff acted upon the advice given to it by the Continental Bank in buying and selling securities; that in 1929 the Continental Bank caused the defendant Continental Illinois Company to be incorporated under the laws of Illinois; that all of the stock of the defendant was owned by a trustee' or trustees and held in trust for the stockholders of the Continental Bank; that defendant was incorporated to take over and conduct the bond and securities business of the Conti nental Bank; that the personnel was substantially the same as before the defendant was incorporated; that defendant continued to solicit plaintiff to buy securities and to seek its advice as it had theretofore done in its business with the Continental Bank; that the capital stock of the plaintiff bank was approximately $50,000, and that plaintiff had no facilities for obtaining adequate information about the value of stocks and bonds, but relied upon defendant in this respect; that on or about September 20, 1931, plaintiff was the owner and holder of about $100,000 par value of bonds and other securities, including $5,000 par value of Insull Utility Investments, Inc., Gold Debentures Series B, payable January 1, 1940, and $5,000 par value of Corporation Securities Company of Chicago Serial Gold Notes payable September 1, 1932, which it had theretofore purchased from the Continental Bank and from defendant; that defendant, together with certain other investment banking houses, underwrote the issue of the securities of the Insull Utility and the Corporation Securities and that it was the . custom of such underwriters to be familiar with the value of securities so underwritten; that on or about September 20, 1931, plaintiff, relying upon the representation and invitation of defendant, inquired of defendant as to its opinion whether plaintiff should sell the $100,000 securities or any part of them, and was advised by defendant to sell all of its $100,000 securities except the Insull Utility Investments, Inc., and the Corporation Securities; that as to these securities defendant falsely represented that it had no opinion as to whether plaintiff should sell them; that it gave such opinion to plaintiff for the purpose of inducing plaintiff not to sell such securities; that plaintiff relied upon defendant’s statement that it had no information as to the advisability of plaintiff selling such securities, and plaintiff did not sell such securities, but retained them; that plaintiff had no source of information available to it in this respect; that at that time the Insull Utility Investments, Inc., and the Corporation Securities Company were heavily indebted to various Chicago and New York banks, including the Continental Bank; that defendant then knew that sub-' stantially all the assets of these two companies were held by various banks including the Continental Illinois Bank, as securities, for large bank loans; that the Utility Debentures and the Corporation Securities were in effect unsecured and that these two companies had no assets of any substantial value; that defendant knew these securities were not sound investments and were not suitable to be owned by plaintiff and that it was advisable for plaintiff to then sell them at the market price, all of which facts were unknown to the plaintiff; that “said false and fraudulent representations to the plaintiff were made by defendant for the purpose of preventing plaintiff from selling its said securities in the open market, which would have caused a further drop in the market price of such securities, to the prejudice of said Continental Illinois Bank and Trust Company affiliated with the defendant as aforesaid”; that on said date the securities were of great value in the open market but that' both are now of no value.

The four counts are substantially the same except that in the first it is alleged the defendant had no opinion about the value of the two Insull securities, and as to whether plaintiff should sell them. In the second count the allegation is that the defendant had no knowledge about the securities; the third, that in its opinion plaintiff should not sell such securities, and in the fourth that defendant had. no knowledge and did not know as to the advisability of plaintiff selling such securities.

From the foregoing we think it appears that the substance of the allegations of the first, second and fourth counts of the declaration is that defendant had no opinion as to whether plaintiff should sell the two Insull securities — that defendant refused to give an opinion on this subject; and we think the fact that in each of these counts it is alleged that defendant did have an opinion but fraudulently said it had none, does not render defendant liable. There is no allegation in any of these three counts that would warrant us in holding it was the duty of the defendant to give plaintiff advice when requested.

The essential elements of an action for fraud and deceit were stated in Johnston v. Shockey, 335 Ill. 363, where it was said (366): “An action for fraud and deceit must show six elements in order to afford relief : (1) The misrepresentation must be in form a statement of fact; (2) it must be made for the purpose of influencing the other party to act; (3) it must be untrue; (4) the party making* the statement must know or believe it to be untrue; (5) the person to whom it is made must believe and rely on the statement; and (6) the statement must be material.” It is a general rule of law that a false expression of opinion, even when acted upon by plaintiff, will not support an action for fraud and deceit, but there are well recognized exceptions to this rule. In a note in 35 L. R. A. 417, it is said: “The general rule is that a mere expression of opinion is not fraud. . . . There are, however, well defined exceptions to the rule. If the opinion is designedly false, or advantage is taken of the other party in a manner which is clearly oppressive without any negligence on the part of the latter, there may be fraud, although the statement is only in the form of an opinion,”

In Vulcan Metals Co. v. Simmons Mfg. Co. (C. C. A.) 248 Fed. 853, it is said (p. 856): “The conceded exception in such cases (puffing, or dealers’ talk) has generally rested upon the distinction between ‘opinion’ and ‘fact’; but that distinction has not escaped the criticism it deserves. An opinion is a fact, and it may be a very relevant fact; the expression of an opinion is the assertion of a belief, and any rule which condones the expression of a consciously false opinion condones a consciously false statement of fact. When the parties are so situated that the buyer may reasonably rely upon the expression of the seller’s opinion, it is no excuse to give a false one.” And in Reeves v. Corning, 51 Fed. 774, it is said (p. 780): “There is no certain rule of law by the application of which it can be determined when false representations constitute matter of opinion or matter of fact. Each case must, in large measure, be adjudged upon its own circumstances.” And in further discussing this question the court there also said (p. 781): “The recent case of Dillmam v. Nadlehoffer, 119 Ill. 567, 7 N. E. Rep. 88, is exactly in point upon the proposition that representations regarding the validity of a patent right are matters of opinion, and not statements of fact, for the making of which a suit for rescission will lie. That was a suit to rescind a sale of patent rights on the ground of false and fraudulent representations in regard to their validity. The representations are set out in the opinion of the court as follows:

“ ‘The defendant represented to plaintiffs that said improvements were his own invention, and that the patents issued thereon were genuine and valid, and that they did not conflict with or infringe upon the patents or inventions of any one, and particularly those controlled by the Washburn & Moen Manufacturing Company and J. L. Ellwood, or their licensees.’

“The court held that these representations were matters of opinion, and not affirmations of fact, and that they did not constitute such fraudulent statements as were actionable in a court of equity in a suit for rescission.”

Although in some of the authorities above referred to it is held that one who gives false information may in some situations be held liable in an action for fraud and deceit, yet we are of opinion that in the instant case no cause of action was stated in any of the three counts mentioned because defendant did not give' an opinion, but refused to do so.

The sufficiency of count three presents a more difficult question. In that count it is alleged that when “plaintiff inquired of the defendant for the defendant’s opinion” as to whether it was advisable for plaintiff to sell all of its $100,000 of securities, defendant stated “that it was defendant’s opinion that plaintiff should not sell said Insull Utility Investments, Inc., debentures and Corporation Securities Co. of Chicago gold notes, but should retain them.”

It is further alleged that this opinion was not an honest' opinion, because defendant knew that practically all of the assets of the two Insull companies were pledged to banks, including the Continental Illinois Bank, and that defendant’s fraudulent opinion was given “for the purpose of preventing the plaintiff from selling its said securities in the open market which would have caused a further drop in the market price of said securities, to the prejudice of the said Continental Illinois Bank and Trust Company affiliated with the defendant as aforesaid.” To require defendant, under the facts as alleged, to advise plaintiff to sell its stock when to do so might injure the defendant, the bank, other stockholders, and probably the bank’s depositors by causing “a further drop” in the market price of the Insull securities which were held by the bank, would be going farther than any case that has been brought to our attention. Unfortunately most men are not too honest, but owing to the manner in which business has been conducted since the “time whereof the memory of man runneth not to the contrary,” the law up to this time, in some business transactions, permits a certain quantum of lying between buyer and seller without penalty. This is often piously referred to as “puffing,” “dealer’s talk” or “opinion.” “If we were all scrupulously honest, this would not be so; but, as it is, neither party usually believes what the seller says about his own opinions, and each knows it. Such statements, like the claims of campaign managers before election, are rather designed to allay the suspicion which would attend their absence than to be understood as having any relation to objective truth.” Vulcan Metals Co. v. Simmons Mfg. Co., 248 Fed. 853, 856.

The two cases which we think go farther than any others toward sustaining plaintiff’s contention are Medbury v. Watson, 6 Metc. (47 Mass.) 246, and Fottler v. Moseley, 179 Mass. 295.

The Medbury case was an action to recover damages for alleged false and fraudulent affirmation by the defendant with reference to a certain tannery. There the plaintiffs were desirous of purchasing a tannery and inquired of defendant, Watson, as to where and on what terms the tannery could be purchased. Watson, for the purpose of defrauding plaintiffs, advised that Wasson had such a tannery which he would sell for $4,000, being the amount that he had paid for it. Plaintiffs purchased the tannery, paying $4,000 for it when, as a matter of fact, the owner had paid only $3,000 for the tannery and was willing to sell it for that amount. The court held Watson liable for $1,000, although he received nothing for what he did. The court there said (p. 259): “The action on the case for deceit is one well known; and, for a long series of years, has been maintained in the English courts. It has also been sustained by us as an efficient means for the punishment of frauds, and for the protection of the weak and the ignorant against the designs and artifices of the crafty.

“The leading case, in modern time's (1833) on the subject of false affirmations made with intent to deceive, is that of Pasley v. Freeman, 3 T. R. 51, in which it was decided that a false affirmation made by defendant with intent to defraud the plaintiff, whereby the plaintiff received damage, was the ground of an action upon the case in the nature of deceit; and that it was not necessary that the defendant should be benefited by the deceit, or that he should collude with the person who received the benefit. . . .

“But in actions on the case for deceit, founded upon false affirmations, there has always existed the exception, that naked assertions, though known to be false, are not the ground of action, as between vendor and vendee; . . .

(p. 260) “but I presume I am safe in affirming, that the greater part, if not all, the cases cited, are those of false affirmation by the vendor to the vendee, where the maxim caveat emptor applies, and not those resting upon the false representations of a third person with regard to the value of the property. ...

“In the present case, we think the averments in the declaration would not have supported an action, if the false representations had been made by the vendor to the vendee. But the representations were made by a third person, apparently disinterested.” In that case the defendant, Watson, actively participated in bringing about the sale of the tannery from Wasson to plaintiffs. He did not merely give lffs opinion, as in the instant case. Moreover, the defendant in the instant case cannot be considered a disinterested third party because its own assets according to the allegations of the declaration would have been detrimentally affected by the sale of plaintiff’s securities.

In Fottler v. Moseley, 179 Mass. 295 (1901), plaintiff sued defendant, a stockbroker, for deceit charging that defendant stated that certain sales of stock of a corporation were genuine transactions when, as a matter of fact, they were not; that plaintiff, relying upon such representations, revoked an order which he had given to the defendant to sell plaintiff’s stock, and thereby suffered loss. In that case the defendant stated as a fact that what purported to be genuine sales of stock were bona fide sales, when as a matter of fact they were fictitious sales, and the defendant was held liable. In the instant case the defendant but gave its opinion that plaintiff should not sell its Insull securities. Nor was there any contention in the Fottler case that defendant would have been damaged if plaintiff’s order to him to sell the stock had been carried out.

The judgment of the circuit court of Cook county is affirmed.'

Judgment affirmed.

McSurely, J.,

specially concurring: I concur in the above with the added comment that if all the wrong prognostications concerning stocks made in recent years were actionable, most of the population would be in the courts.

Matohett, J.,

dissenting: I think the third count stated a good cause of action. I am not impressed with the doctrine that one who owes a duty to speak the truth is not obligated to do so because it would hurt him.


author: Mr. Justice McSurely

text:
    State Bank and Trust Company, Appellant, v. Josephine A. Massion et al., Appellees.
    Gen. No. 37,753.
    Opinion filed February 25, 1935.
    Poppenhusen, Johnston, Thompson & Cole, of Chicago, for appellant; James W. Hyde, Max Bloomstein, Jr., and Albert E. Jenner, Jr., all of Chicago, of counsel.

      Jacob G. Grossberg, Lewis W. Cohh and Frederick A. Smith, all of Chicago, for certain appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

In a foreclosure proceeding the court ordered certain rentals, amounting to $2,052.04, deposited with the clerk of the court, to be paid to the owner of the equity, Josephine A. Massion, defendant; complainant appeals from this order, claiming it was entitled to this money. The court also ordered that certain taxes aggregating $10,696.60 be paid out of rentals in the hands of the clerk, and defendant has filed a cross-appeal asserting that this should have been awarded to her.

The position of defendant is that as she was the owner of the equity of redemption, in possession, and no receiver was appointed, she was entitled to the rents from the premises until a decree had been entered, citing Rohrer v. Deatherage, 336 Ill. 450, and other cases. Complainant’s position is that defendant was practically a receiver, appointed by order of the court, which had the premises under its control; that defendant as mortgagor being in default, the court properly ordered the taxes paid and should have ordered the balance in the hands of the clerk paid to it.

November 30,1931, complainant filed its bill to foreclose the lien of a trust deed securing bonds aggregating $155,000, alleging certain defaults, acceleration of the maturity of the indebtedness, that the rents, issues and profits were conveyed by the trust deed, and alleging upon information and belief that the property was worth not to exceed $130,000. The bill asked for the appointment of a receiver.

Upon notice to defendant December 1 complainant moved the court to appoint a receiver of the premises involved, and in support of the motion presented its verified bill of complaint.

Defendant’s counsel asked that the motion for a receiver be continued to January 4, 1932, and thereupon the court ordered that the defendant deposit with the clerk of the court the entire gross rental and income of the premises beginning December 1, 1931, and that none of the expenses of the building- should be paid except by order of court.

December 12, 1931, defendant presented her petition to the court in which she recited the order of the court directing her to collect rentals from the tenants and to manage and operate the property and to deposit the rentals so collected with the clerk of the court, and that in pursuance of such instructions she had continued the management and operation of the building and collected the rents; the petition gave a list of the tenants and further stated that Baird & Warner, rental agents, had been collecting rents of the building and had made certain expenditures; that defendant had requested Baird & Warner to pay over the balance in its hands but it had refused to do so, and defendant asked the instructions of the court for an order concerning the disposition of the moneys held by Baird & Warner. The petition also presented a statement as to purchases of coal and other expenses in connection with the operation of the building. Attached to the petition was a copy of a letter sent to Baird &i Warner narrating the foreclosure proceedings and the order of the chancellor directing the petitioner to collect the rents.

The court thereupon, on the same day, entered an order pursuant to the petition, ordering defendant to turn over the moneys in her hands to the clerk of the court to await the further orders of the court, and also ordering that Baird & Warner forthwith deliver to the defendant, or the clerk of the court, all the moneys received from the tenants of the building; the defendant was also ordered to pay the janitor’s wages, electric light costs, and for coal.

• The motion for the appointment was continued from time to time.

Other petitions were filed by the defendant asking instructions as to expenses in connection with the building, and the court ordered that she should continue as theretofore directed by order of the court, and the payment of the expenses was ordered. Similar petitions were filed, and orders were entered in January, February and March, in which the defendant was authorized to pay expenses of the building.

May 5, 1932, defendant filed a further report of rents collected, using the following language:

“Said petitioner further represents that on December 1st, 1931, an application for the appointment of a receiver for said property was made before this Court, and, after being fully advised in the premises, the Court directed and ordered that in lieu of any receiver the said defendant proceeded to manage and operate said property, collect the rents, and do all other necessary things required in and about the care and conservation of said property and, pending determination of this cause, that said defendant caused to be deposited with the Clerk of this Court the net proceeds of the rents collected.”

In June the trustee asked for an order on the clerk to pay out of rentals deposited with him certain taxes, which was ordered, the record showing that defendant agreed to the entry of such order.

Defendant failed to malee deposit of the rentals with the clerk for the month of October, 1932, and on November 29th complainant filed a petition asking that the balance of the money in the hands of the clerk be turned over to it and»- that the defendant be required to give a bond to make the monthly deposits of the rentals, or, in the alternative, that a receiver be appointed ; an order was thereupon entered, upon the request of the defendant, that upon her giving a bond in the sum of $4,000, conditioned on her accounting to the complainant for the rentals of the property, she be allowed further to retain possession.

Defendant failed to give such bond, and on December 15th she and her husband assigned the rents of the property to complainant and placed the property in complainant’s possession.

Subsequently, in August, 1933, upon petition by complainant the court ordered certain taxes on the premises to be paid out of the funds in the hands of the clerk.

January 3, 1934, the bill to foreclose was referred to a master in chancery; subsequently complainant filed a petition asking that defendant be ordered to account for rentals collected for the period from March 1, 1932, to December 31, 1932, and asking that the clerk of the court turn over to complainant the balance of the rentals in his hands; answers were filed to the petition, which was also referred to a master in chancery; the clerk reported that he had in his hands a balance of $2,052.04.

Defendant also filed a petition setting up that she was the owner of the equity of redemption; that under an order of court she had deposited the rentals of the property with the clerk; that the total deposited with the clerk was $12,748.64; that $10,696.60 was paid out for taxes, leaving in the hands of the clerk $2,052.04; defendant asked that she be paid the entire sum deposited with the clerk; a hearing was had before the master on the merits of the foreclosure cause and also upon the petitions of complainant and the cross petition of defendant.

June, .1934, the master filed his report, finding the issues on the foreclosure suit in favor of complainant, recommending a decree, and that the property be sold, also finding that defendant was not entitled to any part of the rentals deposited with the clerk and that complainant was entitled to the balance of the fund. Defendant filed objections, which were overruled, and which were filed as exceptions.

The chancellor sustained the defendant’s exception to the finding that complainant was entitled to the balance of rentals and the exception to the finding that defendant should account for rentals from March to December, 1932, and ordered that the sum of $2,052.04, balance in the hands of the clerk, should be paid to the defendant.

While it is true that the owner of the equity of redemption is entitled to the rents of the mortgaged premises until the mortgagee takes actual possession or until a receiver is appointed and takes possession, yet, viewing the proceedings heretofore noted, the conclusion is manifest that the order of the court that defendant should remain in possession of the premises, collect the rents, deposit them with the court, pay expenses of operation under orders of the court, was in practical effect the appointment of a receiver by the court. While there was no formal order appointing a receiver, the order entered had all the practical effect of the appointment of a receiver and it was understood that defendant was to act as a receiver. In one of defendant’s petitions she recites that the order to her to manage the property was “in lieu of any receiver.”

Hall v. Goldsworthy, 136 Kan. 247, involves, in principle, a similar situation to that here presented. In that case, during the pendency of a foreclosure suit it was stipulated that the rent might be held by a Mr. Grlasco pending the determination of the cause; the question arose as to whether the owner of the equity of redemption or the complainant trustee was entitled to these rents. The court held that the trustee was not entitled to the rents until he had by appropriate proceedings in court, such as through a receiver, taken possession. The court held, however, that it does not necessarily follow that this is the only remedy, saying: “Any proper procedure which would empower the court to control the rents and profits would be sufficient to vest the mortgagee with the title thereto, which must, of course, be applied on the mortgage indebtedness.” The court said that the agreement that Glaseo should collect and hold the rents had the practical effect of the appointment of a receiver by the court. In Hutchinson v. Straub, 64 Ohio St. 413, the mortgagor of certain premises made an assignment for the benefit of his creditors; the court ordered the rents collected by the assignee to the date of sale paid to the mortgagee. The opinion, after noting that ordinarily the mortgagee could sequester the rents by the appointment of a receiver in a foreclosure suit, said that this was not the only way — that the rents being in the custody of the court, their distribution should be determined on equitable principles; that it made no difference that the fund was acquired by an assignee “rather than by the appointment and action of a receiver, for, to all intents and purposes obtaining in the present case, there is no essential difference between the two. Bach is an arm of the court for the purpose of working out the rights, equitable as well as legal, of the parties. And the mortgagee having the right to resort to the rents as well as to the land itself for the satisfaction of its debt, a refusal to make such application of the fund would have been a denial of that right.” Also supporting the principle that, so long as the court has control of the income it is immaterial by what form such control is obtained, are First Savings Bank & Trust Co. v. Stuppi, 2 F. (2d) 822, and Atlantic Trust Co. v. Dana, 128 Fed. 209.

Complainant’s motion to appoint a receiver was continued at the request of the defendant, and it is a fair presumption that permission given her to remain in possession, operating the building, was pursuant to her request, and that this should be allowed in lieu of the appointment of a receiver. It is also a fair presumption that if she had not been permitted, under orders of the court, to operate the building and to account for the rents, a receiver would have been appointed. The record is consistent only with the fact that the rents were collected by defendant and paid to the clerk to obviate the expense of the appointment of a receiver and for the purpose of making them amenable to any claim complainant might have thereon under the terms of its trust deed.

Defendant questions the showing made in the bill as ground for the appointment of a receiver. The bill in effect alleges that the land is worth approximately $25,000 less than the mortgage indebtedness. Moreover, the defendant in consenting to her appointment to operate the building in lieu of a receiver, virtually admitted the necessity for a receivership.

Defendant also says that the clerk was merely a depository and the funds in his hands were not in the control of the court and subject to its orders. It has been the universal practice that when the court directs money to be paid to its clerk he receives and holds it in his official capacity and can only dispose of it on the order of the court. Baltimore & O. R. Co. v. Gaulter, 165 Ill. 233; People v. McGrath, 204 Ill. App. 169, affirmed on this point in 279 Ill. 550.

There is no merit in the contention that complainant made no motion for the appointment of a receiver. The bill itself contained such a motion and the petitions and reports of defendant are replete with references to such a motion.

Treating the possession and maintenance of the premises by the defendant as the equivalent of possession by a receiver, the question is, What is an equitable distribution of the funds collected by her and deposited with the clerk? Defendant asked for a repayment to her of the sums paid for taxes. She is on record as assenting to one payment and is in no position to object to the other payment. Complainant would have been entitled to an order on a receiver to pay these taxes, and, as we have said, defendant was virtually acting as a receiver. She therefore cannot question the payment of the taxes.

It follows from what we have said that defendant was not entitled to the balance of the fund left in the hands of the clerk. By the trust deed the rents and profits were conveyed to the complainant, and after the court took possession of the property by the defendant it was entitled to the application upon its debt of the rents collected.

Complainant in its petition asked that the defendant be required to account for the rents collected by her, with a report of disbursements for the months from March to December, 1932, both inclusive. The petition asserts that the report covering this period was unexecuted and unverified, and that no order was ever entered approving said purported reports. The court should have required a report covering this period and should have passed upon it.

The defendant says that part of the rentals deposited with the clerk by her consists of collections, made by her or her agent, of rents which had accrued prior to December 1, 1931. Defendant is entitled to such rentals, less any obligation for expenses incurred prior to December 1.

Complainant should be given all rentals falling due December 1, 1931, and thereafter, which are in the hands of the clerk. Defendant should receive credit on account of the debt for the amount of rentals given to complainant.

For the reasons indicated the orders authorizing the payment of taxes are affirmed, but the order of July 10, 1934, in so far as it finds the balance of $2,052.04 in the hands of the clerk is the property of defendant and the clerk ordered to pay this sum to her, is reversed.

The cause is therefore remanded for further proceedings in accordance with what we have said in this opinion.

Affirmed in part, reversed in part and remanded with directions.

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


author: Mr. Justice Matchett

text:
    Nicholas Berkos, Appellee, v. Aetna Life Insurance Company, Defendant. Felix de la Rosa, Intervening Petitioner, Appellant.
    Gen. No. 37,821.

      Opinion filed February 25, 1935.
    Hubbard, Baker & Bice, of Chicago, for appellant.
    Davis P. Buzane, Nicholas Berkos, Steven C. Spencer and Thomas Fillmore, all of Chicago, for appellee; Steven C. Spencer, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Berkos, an attorney, on March 7, 1934, filed in the circuit court a petition for an attorney’s lien under the statute (Cahill’s Ill. Rev. Stats. 1933, ch. 13, H 13, p. 148) upon the proceeds of two certificates issued to Candelario de la Bosa under a group life insurance policy. Aetna Life Insurance Co., named as defendant, appeared and answered the petition, and Felix dé la Bosa (father of Candelario) was granted permission to intervene and also filed an answer. The court heard the evidence and April 24, 1934, entered a decree awarding a lien to petitioner in the sum of $666.66, with costs.

De la Bosa, intervening .petitioner, has perfected this appeal. The claim of petitioner for lien was based on an alleged contract with Candelario de la Bosa. Assuming that insertions in longhand superseded stricken out portions of the contract, it reads as follows :

£ £ Chicago, May 8,1933
££I hereby employ Nicholas Berkos, attorney, to prosecute all claims for damages against Aetna Life Ins. Co. on account of total disability provision on the 18 day of March A. D. 1933, and in consideration of his services, I agree to pay him a sum of money equal to One Third y of any amount collected from said claim and assign to him One Third y of any judgment hereafter recovered in said case.
“Candelario de la Rosa
“We hereby agree to make no charge unless recovery is had in above matter, and no settlement without consent of claimant.
“Nicholas Berkos
“Albino Soria
Witness”

The evidence in the case" tends to show that Candelario was a. Mexican laborer employed by Swift & Co. He was the owner of two certificates of interest for the sum of $1,000 each in a group life insurance policy so-called, issued by the Aetna Life Insurance Co. in favor of the members of Swift & Co. Employees Benefit Association. His father, Felix de la Rosa, the intervenor, was beneficiary of one certificate; the other was payable to his estate. The benefits of this insurance were administered by the Employees Benefit Association, which was maintained by persons employed by Swift & Co. This association assisted members in collecting the amount due without making any charge for such services. Candelario was a member of the organization and entitled to its services and benefits. F. B. McAdow of Swift & Co. was manager and Mr. Randall, also of that company, was assistant manager. These certificates entitled Candelario to accident and sickness benefits.

Some time prior to March 20, 1933, Candelario became ill and on that date began to receive payments of sick benefits after examination by Dr. Summer, a physician of Swift & Co. His illness was first said to be appendicitis; he was taken to the County Hospital and about May 18th thereafter his disease was diagnosed as tuberculosis; he left the hospital June 24th and was brought to the home of Miguel and Inocinci Hernandez, the wife of Miguel, and he died at their home on July 16th.

The group insurance policy contained a provision known as the total disability clause. It provided in substance that if any member before attaining the age of 60 years should become totally disabled and presumably thereafter during his life unable to engage in any occupation or employment for wage or profit, “upon receipt at the Home Office of the Aetna Life Insurance Company, during the continuance of insurance on such member, of satisfactory evidence of such disability, the said Insurance Company will pay the amount of insurance in force upon such life at the time such disability commenced, in lieu of all other benefits provided for on such life under the said policy and riders.”

The supposed employment of petitioner as attorney was for the purpose of obtaining for Candelario the benefits of this clause in his lifetime. Petitioner did not negotiate for nor secure the supposed contract directly. His negotiations were conducted and consummated through the interposition of Albino Soria, who witnessed the signature of deceased, and Cruz Maldonado, who acted as interpreter at the request of Soria. Maldonado translated the written English of the contract into Spanish language, which was apparently the native language of Candelario.

Soria testifies that Candelario sent for him the 3rd of May and that he went to see him the following day. Deceased then asked him if he knew some lawyer who could handle his case, “get some money.” Soria says he told him he knew Steven Spencer; that thereafter witness went to Spencer’s office, where the girl at the desk told him Spencer was not there but that he could talk to Mr. Berkos. Berkos then told him he could handle the case but that he. did not have any blank contracts that day. Witness says he afterward gave this information to Candelario who told him that if this lawyer was all right to go and get the papers to sign. Soria went back on the 6th, got the papers and took them to Candelario and read them over to Candelario three or four times; Soria says that after Candelario signed he said “he was satisfied and he signed and he said $100 was to be paid to his attorney.” Soria says he then took the certificates and the contract back to Berkos; that Candelario when he signed was at home and disabled, being unable to move out of bed.

Maldonado says that he was called by Soria May 4th; that Soria said he, witness, was wanted as an interpreter; that he translated the contract to Candelario, who said he was satisfied and signed. Soria and Maldonado both deny any financial interest, but a consideration of all the evidence makes it quite impossible to believe that their services were rendered upon an altruistic basis.

Berkos filed notice of lien under his contract with the Aetna Life Insurance Co. Service was made personally and May 9th a copy of the notice was also sent by registered mail. May 11th he wrote making claim in behalf of Candelario for total disability on account of a tubercular condition of his client. The same day he wrote to Mr. Randall of Swift & Co. to the same effect and offered to co-operate in making the proofs. May 13th the Chicago office of the insurance company answered his letter of May 11th, stating that the claim had been forwarded to the home office. May 27th he was notified that the Employees Benefit Association had asked the insurance company to investigate the claim. May 29th the Aetna Casualty & Surety Co., apparently in behalf of the Aetna Life Insurance Co., wrote petitioner asking for copies of medical reports.

Petitioner took the matter np with Mr. A. J. Hob-son, claim adjuster for the insurance company, and told him he had a report from the doctor who had been regularly attending Candelario, but Hobson' said he wanted another. Petitioner testifies he got his own family doctor and had him prepare a report. He sent the reports to Hobson June 9th with a written request for settlement dated June 7th, signed by Candelario and witnessed by Maldonado.

While the matter was pending Candelario died.' The proposed settlement had at that time been approved by the home office of the Aetna Life Insurance Co., but the check had not been delivered to the Benefit Association, as was the usual practice in such cases. The Benefit Association refused to pay without a release from the beneficiary of the one policy, Felix, and a like release by the administrator of Candelario’s estate.

The intervener contends that the contract was actually, with Steven Spencer, not Nicholas Berkos; but that contention cannot, fig our opinion, be sustained. It is apparent that Berkos and Spencer had offices and worked together, and the contract was written upon a printed form of contract provided by Spencer. His name, however, was eliminated, and the written contract was with Berkos, although Spencer may have been also interested in it and although the proof shows that he did part of the work in connection with the claim. These lawyers were apparently accustomed to work with and for each other. The actual written contract, however, was with Berkos. He gave notice of the lien, and if a lien is to be allowed he, only, is entitled to it.

A closer question is raised by the contention that the contract was in its nature unreasonable and unconscionable. It is stated in Mechem on Agency, vol. 2, sec. 2236:

“Contracts of this nature, however, to be enforced, must appear not to be excessive or extortionate, and to have been fairly made, after full information and without undue advantage being taken of the ignorance or necessities of the client.”

The compensation provided for the attorney under the terms of this contract is unfair and excessive. The services he was required to perform thereunder were not onerous nor did they call for the exercise of unusual professional skill. The evidence shows that the Benefit Association, to whose services Candelario was entitled, could have performed all the services required and would have done so without any compensation. The services of the attorney might have hurried the matter up a little; he could not do much more. The claim was not in any sense contested. The client was evidently poor — a stranger somewhat unfamiliar with the language and the customs of the country in which he lived. A member of the bar in such case owes to a prospective client and to the community a duty which he should not be slow to perform. The record shows that Soria said that Candelario was told the fee was to have been $100. Petitioner says that the record does not speak the truth in this respect. We must assume it does. The statement of petitioner cannot be received to contradict the record.

It is difficult to believe that the deceased would with knowledge agree to pay $666.66 for the services it was necessary for petitioner to perform. We must hold the contract, as it appears, unconscionable, and that no attorney’s lien can be based upon it for that reason. Pratt v. Kerns, 123 Ill. App. 86; Robinson v. Sharp, 201 Ill. 86. The services here were not of a kind for which a contingent fee of one-third or one-half the amount recovered would be reasonable, as in cases upon which petitioner relies.

But there is another reason why the order allowing the lien may not be sustained. There is clearly nothing due under the terms of the contract. It says: the client agrees to pay ‘ ‘ One-third of any judgment hereafter recovered in said cause.” No judgment has been recovered at any time. It says the client agrees to pay “a sum of money equal to One-third of any amount collected from said claim.” The uncontradicted evidence is that no sum whatever has been collected. Conditions precedent have not been met. There is nothing due to claimant under the contract, and therefore no lien can be based on it.

For the reasons indicated the order of the trial court allowing the lien must be reversed.

Reversed.

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


text:
    E. J. Silberman, Appellee, v. Maria Becklenberg and Fred Becklenberg, Appellants.
    Gen. No. 37,830.

      Opinion filed February 25, 1935.
    Rehearing denied March 11, 1935.
    WlLHARTZ, HlRSCH & ScHANFARBEB and MeRWIN M. Hart, all of Chicago, for appellants; Samuel E. Hirsch, Julian H. Levi, Eugene H. Nirdlinger, Abraham Miller and Irving S. Berman, all of Chicago, of counsel.
    Abram L. Myers, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

This suit was an action begun December 19, 1933, upon bond No. 11 of the Austin Boulevard Apartments, made by defendants December 16, 1927, for the sum of $1,000, with interest at 6% per cent, payable to bearer and maturing December 16, 1933. Attached were coupons representing interest falling due on the bond on June 16 and December 16, 1933. On May 21, 1934, the court, having stricken an amended affidavit of ‘merits, entered judgment by default in favor of plaintiff and against defendants for $1,084. Defendants appealed, filing a bond which was approved June 13,1934. The record was filed in this court August 31, 1934.

The bond sued on was one of a series of bonds aggregating $48,000 made by defendants and secured by a trust deed of even date conveying certain real estate in Cook county, Illinois, to Milton S. Yondorf, as trustee. Defendants undertook to interpose the defense that by reason of certain provisions printed on the face of the bond and others contained in the trust deed to which the bond referred, the owner could not maintain a suit at law thereon. In opposition to this defense plaintiff relied on Oswianza v. Wengler & Mandell, 273 Ill, App. 239, 241, which was then pending on certiorari in the Supreme Court. Defendants urged that the decision was wrong and relied upon a reversal of it by the Supreme Court. However, since the appeal in this case was perfected that case has been affirmed by the Supreme Court, 358 Ill. 302, and defendants do not argue error with respect to the judgment entered by the trial court.

Pending the appeal, on July 17, 1934, defendants entered a motion for leave to file a petition in the nature of a writ of audita querela, setting up certain facts on account of which it was prayed the judgment should be in part satisfied. This motion was denied by the court August 29, 1934, and defendants, appealing from that order also, filed a supplemental record in this court and now argue at length error by reason of the entry of it. • •

The petition was duly verified and set up the execution of the trust deed to Yondorf to secure payment of the bonds. It averred that after the execution of the bond, namely, on January 26, 1928, defendants conveyed the real estate by warranty deed to Norman J. McLeod, who received the conveyance subject to the trust deed; that September 10, 1929, Norman J. McLeod and wife conveyed the premises to Charles Drechsler and Gertrude Drechsler by a like deed, they also assuming and agreeing to pay the indebtedness represented by the outstanding bonds,* further, that on February 5, 1934, Yondorf as trustee filed an action in the circuit court of Cook county, Illinois, cause No. 34C 1485, against defendants and Charles and Gertrude Drechsler to foreclose the trust deed; that a decree of foreclosure and sale was entered in that proceeding on June 5, 1934, and that the master in chancery advertised the property for sale; that the proceedings were for the equal use and benefit of plaintiff, together with all other holders of bonds secured by the trust deed, and that plaintiff had an equal interest in the proceeds derived from the foreclosure sale; that the trust deed provided that Tondorf as trustee should have full power and authority to represent plaintiff and all other bondholders with respect to their bonds, and specifically provided that each legal holder held the same upon condition that in case of foreclosure “the Trustee, if he deems it for the best interests of all of the holders of said bonds so to do, and in order that no advantage in the sale of said premises upon foreclosure may be taken by or accrue to any holders of said bonds over any other holders of said bonds, may, at the sale, if said premises shall not be bid in by some other person, persons or corporation for the full amount of the debt, bid in, in his own name as trustee, said premises for the equal benefit of all of the holders of said bonds, included in said foreclosure, either for the full amount of the debt or for a less amount, leaving such deficiency as he may deem proper.”

The petition also averred that by reason of this provision and the decision of the Appellate Court of Illinois in Straus v. Chicago Title & Trust Co., 273 Ill. App. 63, it was the duty of the trustee to bid in the property for the equal and pro rata benefit of all the bondholders, including plaintiff, and that the indebtedness claimed by plaintiff was subject and subordinate to the right of the trustee to satisfy it by such a purchase; that on June 29, 1934, pursuant to the terms of the trust deed, the trustee, as agent for and trustee of all the owners, bid for the whole property at the foreclosure sale $41,000; that the trust deed provided that in case the trustee should become the purchaser he should be entitled to receipt to the officer making the sale for the full amount of his bid as agent and trustee of the holders of the bonds, ratably for each and all of them, after allowing in cash for the costs and expenses of the foreclosure sale; that for that purpose the trustee was constituted irrevocably the attorney for each and all of the bondholders; that the bondholders agreed to contribute and pay to the trustee upon demand their proportionate share of the cash payment on demand; that the trustee was authorized to sue for and recover the same, and if the same should not be otherwise paid the trustee should have a lien therefor upon the interest of any holder of the bonds who failed to pay the same, and that he might retain the amount realized from the premises, from the net rents of the premises, or from such sale thereof, or otherwise.

It was also averred that the decree of foreclosure provided that the trustee might receipt for the amount to the master on behalf of all the bondholders, the same as if his bid were in cash; that the proceeds of the sale were $41,000, which was paid by the master to the trustee and was receipted by him as of June 29, 1934; that under the decree of foreclosure the total indebtedness found due including all expenses of foreclosure was $47,009.60; that the master pursuant to the decree rendered his report of sale and distribution; that on July 12, 1934, an order was entered approving same and finding there remained due and unpaid to the trustee, as agent for and trustee of all the bondholders, $6,009.60, for which defendants and Charles and Gertrude Drechsler were personally liable ; that the order directed that execution issue forthwith and that the deficiency decree should be a first lien against the rents, issues and profits of the property theretofore and thereafter collected by the receiver during the period of the equity of redemption.

The petition also alleged that defendants had theretofore been unable to present these matters, for the reason that they occurred subsequently to the entry of the judgment; that defendants were entitled to have the judgment satisfied to the extent and proportion that the purchase price paid at the foreclosure sale bore to the total indebtedness, as found due by the decree of foreclosure and sale, and that such sum amounted to $945.42.

A copy of the order approving the master’s report of sale and distribution was attached to the petition and made a part thereof. As already stated, the court entered an order denying leave to file the petition. In support of their argument that the court erred in denying leave to file the petition, defendants urge several propositions of law, concerning which there can be no controversy.

They urge that a provision in a trust deed authorizing a trustee to bid for and in behalf of the bondholders is valid and binding. The authorities are numerous to that effect. Pflueger v. Broadway Trust & Savings Bank, 351 Ill. 170 (affirming 265 Ill. App. 569); Sturgis Nat. Bank v. Harris Trust & Savings Bank, 351 Ill. 465 (affirming 266 Ill. App. 199); Yondorf v. Newman, 272 Ill. App. 627 (Abst.); Straus v. Chicago Title & Trust Co., 273 Ill. App. 63; Sage v. Central R. Co., 99 U. S. 334; First Nat. Bank v. Neil, 137 Kan. 436, 20 P. (2d) 528; Hoffman v. First Bond & Mortgage Co., 116 Conn: 320; Nay Aug Lumber Co. v. Scranton Trust Co., 240 Pa. St. 500.

Defendants also urge that a trustee at a foreclosure sale need not pay cash on his bid, even though the sale is so advertised and required as to others, but that he may offer the indebtedness evidenced by the decree of foreclosure and sale, and that such application satisfies the indebtedness pro tanto. The authorities so hold. Belleville Savings Bank v. Reis, 136 Ill. 242; Burnham v. Roth, 244 Ill. 344 (affirming 126 Ill. App. 222); Chicago Joint Stock Land Bank v. McCambridge, 343 Ill. 456; Liberty Loan Ass’n v. Bosen, 246 Ill. App. 362; Yondorf v. Newman, 272 Ill. App. 627 (Abst.); Reeve, Ill. Law of Mortgages & Foreclosures, vol. 2, pp. 779-781.

They further urge that where two judgments are recovered on the same cause of action, there can be but one satisfaction, and the payment of the one discharges the other. It is so held in the cases above cited and many others. See also Corpus Juris, vol. 33, secs. 11, 12. They urge that where facts constituting payment or discharge of an indebtedness occur after the entry of judgment, the judgment debtor is entitled to have the judgment satisfied either by a proceeding by writ of audita querela or by motion in the action in which the judgment was entered. There are numerous decisions which so hold. It is sufficient to cite Harding v. Hawkins, 141 Ill. 572 (reversing 37 Ill. App. 564); McDonald v. Holdom, 208 Ill. 128; People v. Wilmot, 254 Ill. 554; Handley v. Moburg, 266 Ill. App. 356.

They also urge that partial demand in satisfaction may be entered and credited of record by a similar application. It is so held in Sandburg v. Papineau, 81 Ill. 446; Arnold v. Hems, 89 Ill. App. 313; Corpus Juris, vol. 34, secs. 1118, 1119. They also urge that the court has jurisdiction to entertain a petition in the nature of a writ of audita qu,erela, although an appeal has been taken and an appeal bond approved, but further, that assuming the trial court to be without jurisdiction to entertain such application, the appellate tribunal has the power to order the judgment satisfied. It has been so held in the courts of some jurisdictions. Buckeye Refining Co. v. Kelly, 163 Cal. 8, 124 Pac. 536; Connell v. Higgins, 170 Cal. 541, 150 Pac. 769; Corpus Juris, vol. 34, sec. 1116.

Conceding all these propositions, however, there remains for consideration the controlling question in this case, namely, whether the facts set up in the petition bring defendants within the rules announced in the cases cited. In Rohrer v. Deatherage, 336 Ill. 450, the Supreme Court said of a mortgage in default:

“In such case the mortgagee has several remedies which he may pursue to enforce the payment of his debt. He may sue the mortgagor in assumpsit for a judgment upon the personal obligation; he may sue in equity for the foreclosure of the mortgage; or he may recover the possession of the mortgaged property by an action of ejectment. These remedies are concurrent or successive, as the mortgagee may deem proper, and he may pursue any two or all three of the remedies simultaneously. (Bradley v. Lightcap, 202 Ill. 154; Fish v. Glover, 154 id. 86; Harper v. Ely, 70 id. 581; Rogers v. Meyers, 68 id. 92; Carroll v. Ballance, 26 id. 9; Vansant v. Allmon, 23 id. 26.) ” To the remedies there enumerated recent decisions of the Supreme Court and this- court seem to have added the right to bring an action by way of forcible detainer. West Side Trust & Savings Bank v. Gerstein, 270 Ill. App. 250; West Side Trust & Savings Bank v. Lopoten, 358 Ill. 631, 639.

Of course, a creditor is entitled to only one satisfaction. He has no right to be paid twice, and the authorities are all to the effect that the debtor may, where the obligation has been satisfied, present a motion in the nature of a writ of audita querela to compel the satisfaction to be entered of record. The facts set up in the petition fall short of showing* that the debt to plaintiff has been paid. The bill to foreclose, it is to be noted, was not brought by plaintiff but by the trustee. The decree in the foreclosure case did not run in favor of plaintiff here, but of the trustee. The petition does not allege that plaintiff has received any cash thus far out of the foreclosure proceedings. Indeed, it is not alleged that the trustee has realized any cash out of that transaction. All that plaintiff has thus far obtained is an equitable interest in the estate held by the trustee for himself and others, including the grantees of defendants and a right to an accounting from that trustee after all the expenses of the administration of the trust have been paid. The petition therefore seems premature. If defendants desire to appropriate the benefits of the foreclosure proceeding, the way seems open and clear, namely, to pay the judgment rendered against them on the bond and seek subrogation to the rights of plaintiff therein. Howard v. Burns, 279 Ill. 256.

The court did not err in denying defendants leave to file the petition, and the order is therefore affirmed.

Affirmed.

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


author: Mr. Presiding Justice O’Connor

text:
    George Ladone for Use of Rose Ware, Appellee, v. National Casualty Company, Appellant.
    Gen. No. 37,805.

      Opinion filed March 11, 1935.
    Rehearing denied March 25, 1935.
    George C. Bliss, of Chicago, for appellant.
    Joseph D. Ryan, Louis P. Miller and Louis G. Davidson, all of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Rose Ware brought an action against Salvatore Granata and George Ladone to recover damages for personal injuries claimed to have been sustained by her on account of being struck and injured by an automobile, through defendant’s negligence. Apparently the suit was dismissed as to Granata, Ladone was defaulted, and there was a judgment against him for $7,500. An execution was returned nulla bona, and afterward garnishee summons was issued against the National Casualty Company, which company had issued a liability insurance policy on the automobile. There was a trial on this issue before the court without a jury, and a finding and judgment entered in favor of George Ladone for the use of Rose Ware against the garnishee for $7,828.12, and the garnishee appeals.

The record discloses that Salvatore Granata was in the undertaking business in Chicago; his family consisted of himself, his wife, Loraine, a single daughter about 23 years of age, and a son, Prank, about 19 years of age; that July 13, 1929, he bought a Ford automobile for his son Frank from the Litsinger Motor Company. A bill of sale was issued by the motor company, giving a description of the car and showing that Frank was the purchaser. The father paid for the car and shortly thereafter delivered the bill of sale to a Mr. Bra-band, who was engaged in the insurance business, and requested that the ordinary form of insurance be placed on the automobile. Afterward Braband delivered the insurance policy in question to Salvatore Granata, who paid him the annual premium of $32.40. The policy covered the period from July 13,1929, to July 13,1930. In this policy it is stated that Salvatore Granata owned the Ford automobile. Thereafter the car was used by Frank Granata, the son, and apparently was sometimes used by other members of the family. All of the parties treated the car as belonging to Frank.

January 5, 1930, about six months after the car was purchased, George Ladone, 23 years of age, was driving the Ford automobile when he struck and injured Rose Ware, and as stated, she brought suit against Ladone and Salvatore Granata, to recover damages for personal injuries, with the result above stated.

The evidence further is to the effect that Ladone had permission from Frank to drive the car at the time of the accident, and there is some evidence that he was also authorized by the sister, Loraine, to use the car at the time in question in delivering some flowers for her.

The policy stated that the automobile mentioned in the policy was “owned exclusively by the Assured.” (Salvatore Granata.) It also contained a provision which is commonly called the “Omnibus Clause,” which provides that “any person or persons while riding in or operating any of such automobiles . . . shall be considered as an additional Assured under the policy”; that this provision shall not apply “unless the riding, use or operation above referred to be with the permission of the Assured . . . or . . . with the permission of an adult member of such Assured’s household other than a chauffeur or domestic servant.”

It further appears that a short time before the Ford car was purchased Salvatore Granata sold a Chrysler automobile which he owned, and after the Ford car was purchased the license plates, were transferred to it and they were on the Ford at the time of the accident.

In this court counsel for both sides say that the Ford automobile was owned by the son, Frank, and counsel for plaintiff contends that the judgment should be affirmed because Salvatore Granata, although he did not own the automobile, had an insurable interest in it, and the' policy for this reason is valid and enforceable — that the ownership of the automobile, under the circumstances, is immaterial. In support of this counsel say, “An insurable interest, as it applies to the case under discussion, does not necessarily depend on any interest in the ownership of the car. A judgment might be rendered against Salvatore Granata even though he were not the owner, if an accident occurred while the car was being driven by him, in his business, or under bis direction. Against any of these eontingencies he had a perfect right to procure insurance.” Whether this contention is sound is wholly immaterial here, because there was no judgment rendered against Salvatore Granata. On the contrary, he was dismissed out of the personal injury case. Whether Salvatore Granata may have an insurable interest under some circumstances is wholly immaterial to the instant case.

There is some evidence to the effect that Braband was the agent for the insurance company in writing and delivering the policy and in collecting the premium. He was given the bill of sale issued by the Litsinger Motor Company showing that the car belonged to Frank Granata and requested that a policy of insurance be written. The policy having been written, showing Salvatore Granata to be the owner of the car, was apparently through a mistake which was not discovered until after the accident. In these circumstances the proper procedure would be by bill in equity to reform, and to enforce the policy as reformed. While there are authorities that hold that a recovery may be had without reformation, such as Buchanan v. Scottish Union & National Ins. Co., 210 Ill. App. 523, and authorities there cited, yet we have found no case where this was done where there was a mistake similar in character to the mistake in the policy before us. Moreover, no contention was made in the trial court nor in this court that the policy should be held to insure Frank Granata.

There is considerable argument in the briefs as to whether Braband was the agent of the insurance company or of Salvatore Granata; but we think that was a question of fact. Roy Iverson Co. v. United States Lloyds, Inc., 251 George Ladone for Use of Rose Ware, Appellee, v. National Casualty Company, Appellant. App. 150. In that case, in discussing whether a broker represented the assured or the insurance company, we said (p. 153): “The fact that he calls himself a broker does not in any way tend to show that he was n'ot the representative of the defendant in the instant case. There is no magic in the term ‘broker’ that will permit an insurance company to hide behind him in case of a loss and insist that he is the representative of the assured, as is too often sought to be done, and is the fact in the instant case.”

We think there was no error in the admission of parol evidence on the question whether Braband was the agent of the assured or of the insurance company. To determine that question, it was proper to adduce all the facts as to what was said and done by the parties. We are further of the opinion that the plaintiff was not estopped to contend that Ladone was an “additional Assured” under the policy, nor was the defendant estopped from contesting the policy because it had defended Salvatore G-ranata in the personal injury case. The policy expressly provides that the insurance company shall defend the assured in any suit brought against him “even if groundless.”

Since both parties contend that the Ford automobile mentioned in the policy was owned by Frank Granata and not by his father, and for the other reasons stated in this opinion, no recovery can be had' unless the policy were reformed.

The judgment of the superior court of Cook county is reversed and the cause remanded.

jReversed and remanded.

McSurely and Matchett, JJ., concur.


text:
    Bertha Peritz, Appellee, v. Ida Taub et al., Appellants.
    Gen. No. 37,870.
    Opinion filed March 11, 1935.
    Rubenstein & Becker, of Chicago, for appellants; Harry Becker, of counsel.
    Kelner & Kelner, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Á receiver, was appointed in a foreclosure proceeding, which went to sale, resulting in a deficiency judgment for $1,589.99 against the defendants. The court then ordered that Ida Taub, defendant and owner of the equity of redemption, might continue to occupy one of the apartments of the building upon paying a monthly rental to the receiver; she appeals from this order, claiming that as owner of the equity of redemption she is entitled to remain in possession during the period of redemption without payment of rent.

The trust deed conveying the premises in question provided that a receiver might be appointed for the benefit of the holders of the indebtedness secured “whether the same shall then be occupied by the owner of the equity of redemption,” with power to collect the rents, issues and profits of the premises during the pendency of the foreclosure suit, and, “in case of sale and a deficiency, during the full fifteen months statutory period of redemption.”

It is well established that a receiver may be appointed in a foreclosure proceeding, and continued where there is a deficiency decree, to collect the rent and income of the property during the period of redemption. Cases cited by the defendants so hold. First Nat. Bank v. Illinois Steel Co., 174 Ill. 140; Haas v. Chicago Bldg. Society, 89 Ill. 498. See also Reeve Illinois Law of Mortgages, vol. 2, sec. 551.

The particular question presented is whether the owner of the equity of redemption in possession may be compelled to pay rent during the period of redemption. Defendants rely chiefly on the decision in Holmes v. Gravenhorst, 263 N. Y. 148. That case was concerned with an application for the appointment of a receiver of the mortgaged premises prior to a sale; the mortgage contained a clause that the holder of the mortgage in any foreclosure proceeding should be entitled “to the appointment of a receiver of the rents and profits of said premises.” The mortgagor-owner was in possession during the pendency of the foreclosure action, and the question there presented was whether prior to sale the receiver was entitled to an order fixing the occupational rent of the mortgagor-owner based solely upon this provision in the mortgage. The court held that under the law in New York the mortgagee had no right to possession pending a foreclosure except where the right grows out of facts extrinsic to the mortage contract ‘ ‘ or where there is a clause in the mortgage expressly giving him that right.” The court construed the clause in the mortgage relating to the appointment of a receiver as meaning that a receiver might be appointed merely for “the collection of the rents and profits, and if there be no rents and profits because actual possession is in one having the right of possession inherent in his ownership, no right of possession exists which may be conferred upon a receiver.” That case may be distinguished from the one at bar, in that there the application for a receiver was made before sale. In the instant case the receiver was continued after sale and a deficiency judgment. In the Holmes case the mortgage provided for the appointment of a receiver “for the rents and profits.” In the instant case the receiver, appointed for the benefit of the legal holder of the indebtedness, is given power to collect the rents, issues and profits in case of sale and a deficiency during the full period of redemption. In the Holmes case the application for the receiver rested solely upon the provision in the mortgage. We have held that such provision will not necessarily be enforced. Frank v. Siegel, 263 Ill. App. 316.

Moreover, we are not inclined to agree with the refinement which distinguishes between rents from premises and the premises itself. It has generally been understood that a receiver of rents was also the receiver of

the premises producing those rents. The dissenting opinion in the Holmes case seems to us to contain the better reasoning, as follows: A mortgagor personally occupying the premises is by virtue of that occupancy in receipt of a benefit in all respects equivalent to rent and profits. In effect, the mortgagor-occupant charges himself with the value of the space occupied as rent and credits himself with this amount as income. With the appointment of a receiver, the income credit — like the income from any other tenant — -goes to the receiver. He continues to charge himself with rent, but he pays it to the receiver instead of to himself. He loses nothing since the rent goes to the receiver’s fund to carry the property (a duty resting on him), and thereafter to meet a deficiency, if there be one, otherwise to himself.” It is difficult to make a distinction in principle between occupancy by an owner and by a tenant, and we see no reason to hold that the rights of the owner in this respect are superior to those of the owner’s tenants.

The only case cited involving the precise question presented is Greenebaum v. McCormick, 273 Ill. App. 126. In that case there was a deficiency decree and the receiver asked the mortgagor-owners to pay rent for the premises in the mortgaged building occupied by them. It was held that the court should have protected the rights of the mortgagee, complainant, either in placing the receiver in actual possession or by directing the mortgagor-owners to pay rent for the occupied premises. The opinion in that case rested upon Rohrer v. Deatherage, 336 Ill. 450, where it was held that upon default in ,the condition of the mortgage the mortgagee has the right to possession as against the mortgagor.

In the case of West Side Trust & Savings Bank v. Gerstein, 270 Ill. App. 250, we held that a trustee in a trust deed conveying the rents as security for the indebtedness upon condition broken may take possession of the premises, collect the rents and apply them on the indebtedness by an action of forcible detainer where the tenant refuses to pay rent or to vacate the premises. In West Side Trust & Savings Bank v. Lopoten, 358 Ill. 631, the Supreme Court in effect sustained our holding in the Gerstein case, saying that after condition broken the mortgagee is, as between himself and the mortgagor, the owner of the fee, and that upon default the mortgagee has the right to possession against the mortgagor, his grantee, lessee, or anyone claiming under him by any right, citing Wolkenstein v. Slonim, 355 Ill. 306; Rohrer v. Deatherage, 336 Ill. 450; Taylor v. Adams, 115 Ill. 570; 2 Jones on Mortgages (8th ed.) sec. 981. It was held that upon default by the mortgagor and demand of the mortgagee it was the duty of the mortgagor to surrender possession. It would follow as a logical conclusion that if the mortgagor-owner was bound to yield possession, his continued occupancy could be conditioned upon the payment of rent.

We are not unmindful of the statute which gives a mortgagor-owner the right to redeem the real estate so sold under foreclosure decree, but no case has been cited, and there is none that we have been able to find, which holds that this right to redeem includes also the right to possession under all circumstances.

We are also mindful of what is said in Haas v. Chicago Bldg. Society, 89 Ill. 498, that a court of equity should not exercise its power to appoint a receiver after a decree and sale except in accordance with the principles' of equity.

We are also" in accord with the suggestion in the briefs of the defendants that the courts will take cognizance of the depressed real estate market conditions. Straus v. Chicago Title & Trust Co., 273 Ill. App. 63. The record shows that the premises in question is a two-story and basement brick building containing two apartments and a three-car garage in the rear; that they are in poor condition. There is a deficiency judgment against the defendants of nearly $1,600. The chancellor ordered that defendant Ida Taub should continue to occupy the first floor apartment of six rooms, heated with steam heat furnished by the receiver, for a monthly rental of $17.50, and she is also permitted to occupy the garage until the receiver procures a tenant for it.

We hold that the order was equitable and fair to all parties concerned and permitted under the authorities above cited. It is therefore affirmed.

Affirmed.

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


text:
    The People of the State of Illinois ex rel. Walter F. Gallas, Appellee, v. Anton Krupicka, Appellant.
    Gen. No. 38,038.

      Opinion filed March 11, 1935.
    Rehearing denied March 25, 1935.
    Markman, Donovan & Sullivan, of Chicago, for appellant; Henry O. Nickel, of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, and Thomas M. Zasadil, of Chicago, for appellee; Thomas M. Zasadil and Arthur A. Sullivan, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

In November, 1934, the board of trustees of the town of Cicero, Illinois, appointed defendant commissióner of public works; quo warranto proceedings were instituted against him resulting in a judgment of ouster, from which defendant appeals.

The relator claimed that the board of trustees of Cicero had no power to appoint a commissioner of public works; that this power was- solely in the president of the board of trustees. The question presented is whether the board of trustees or the president had the sole power to make the appointment.

The town of Cicero was incorporated by a special act of the legislature in February, 1867; by an act passed and approved in March, 1869, the charter was revised. The government and corporate powers were

vested in the board of trustees, which was given full and exclusive powers of control in all respects. In People v. Knopf, 186 Ill. 457, it was noted that the powers and duties of the town of Cicero were greater than those of ordinary towns, cities and villages.

The power of appointment is usually regarded as one of the prerogatives of sovereignty. McQuillin Municipal Corporations, vol. 2 (2nd), sec. 472. In the absence of express authority the right of every corporation to select its officers and agents to carry out the purpose of its formation and existence is a common law incident. The power may be exercised by the board of trustees as the general agent of the municipality and it is the only authority which may exercise it. McQuillin Municipal Corporations, vol. 1 (2nd), sec. 394, vol. 2, sec. 424. It does not seriously seem to be disputed that under the charter the board of trustees of Cicero had the. sole power of appointment.

The relator says that incorporated towns have no vested rights; that they are subject to legislative control and their charter may be amended by a general law, citing Town of Cicero v. City of Chicago, 182 Ill. 301; City of Chicago v. Town of Cicero, 210 Ill. 290; People v. Crawley, 274 Ill. 139. The relator contends that the power of appointment was vested solely in the president of the board of trustees by the act of the legislature concerning villages and incorporated towns, in force July 1, 1887, Cahill’s Illinois Statutes, ch. 24, ¶1196, sec. 1, which provides that the president of any village or incorporated town shall have the same power and perform the same duties as are or may be given by law to the mayor in cities.

We have had occasion- to consider this question in People ex rel. Janosky v. Novotny, 273 Ill. App. 254. The question there presented was whether the power of appointment was solely in the president of the village board or in the board of trustees. We there cited a number of cases in which it was held that this power was in the board of trustees and not in the village president. Our opinion noted various provisions of the Act of 1887 and the argument that by this act the powers and duties of the president of a village board are the same as those of the mayor of a city; that the mayor of a city fills by appointment the offices of the city, subject to the approval of the city council. We held this contention could not be sustained.

We were of the opinion that the legislature by the Act of 1887 did not intend to change the functions of the president of a village and the board of trustees so as to give the president the power of appointment. We said, “The Act of 1887 does not refer to the power to fill offices at all, and we think it clear that if the legislature in 1887 intended to give such power to the president of a village it would have said so.” Relator’s brief gives approval to the decision in that case but seeks to distinguish it from the instant one by saying that that case involved the village of Stickney, which was created under the Cities and Villages Act, and that there is a difference between such municipalities and the town of Cicero, incorporated under a special charter. We do not think the distinction is material. In the Janosky case we were passing upon the Act of 1887 with respect to the question whether it granted the president of a village board powers of appointment. We held that it did not grant such powers, and this fact would be applicable to all villages and towns, whether incorporated under the Villages Act or under a special charter. If the Act of 1887 does not refer to the power to fill offices at all, as we held, how can it reasonably be argued that it gave power of appointment to the president of an incorporated town? We abide by the J ano sky case, and applying what is there said to the instant case, we hold that the legislature by the Act of 1887 did not change the provisions of the charter of the town of Cicero with respect to appointments, and that such power remained solely in the board of trustees.

McCormick v. People, 139 Ill. 499, is not in point. There was involved the question whether the president should be elected by the board of trustees or by the people, and it was held that by the Act of 1887 the president must be elected by the people, repealing by implication section 8 of the Act of 1872 which provided for the election of a president by the trustees. King v. Jordan, 198 Ill. 457, cited by relator, also involved the election of a president of a village.

Incidentally, we have not referred at length to the Cities and Villages Act enacted in 1872, as both parties to the instant case seem to agree that this act, and especially articles 6 and 11, has no application to the town of Cicero.

By an ordinance approved April 21, 1924, the town of Cicero created, among other things, the office of commissioner of public works, and provided that he should be appointed by the president, by and with the consent of the board of trustees; November 9, 1934, an ordinance was passed amending this prior ordinance by providing that the board of trustees should appoint all employees and officers; defendant was appointed by the board of trustees subsequent to the passage of this amending ordinance.

Defendant contends that the board of trustees could not delegate its power of appointment to the president, citing City of Sullivan v. Cloe, 277 Ill. 56, where it was held that a power conferred upon a particular body or set of public officials cannot be delegated to another body or other officials. A number of cases so holding might be cited. People v. Clean Street Co., 225 Ill. 470; City of Chicago v. Stratton, 162 Ill. 494. We are inclined to hold that when, by its charter, the board of trustees was given exclusive power to make appointments it must personally exercise those powers and cannot delegate them to anyone else.

We hold that by the special charter granted to the town of Cicero the government and corporate powers were specifically invested in the board of trustees, to be exercised by it and no others; that these powers include the power of appointment; that the Act of 1887 contains no provisions with respect to appointments which negative the powers vested in the board of trustees, and that there is nothing in that act, as amended in 1903, or in force July 1, 1917, which indicates an intention on the part of the legislature to give the power of appointment to the president. We also hold that the board of trustees was obligated to discharge its duties of appointment without delegating them to others; also, that the defendant, Anton Krupicka, was duly appointed to the office of commissioner of public works of the town of Cicero; that he duly qualified and was vested with the title to this office.

For the reasons indicated, the judgment of ouster of the circuit court is reversed.

Reversed.

O’Connor, P. J., and Mato'hett, J., concur.