text:
    People’s Drug Shop, Inc., Appellant, v. Leslie M. Moysey, Appellee.
    Gen. No. 42,215.
    Opinion filed January 6, 1943.
    Stanley S. Day, of Berwyn, for appellant.
    Arnold L. Lund, of Chicago, for appellee.
    George F. Barrett, Attorney General, amicus curiae; Albert E. Hallett, Assistant Attorney General, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an appeal from a judgment for defendant on his motion based on insufficiency of the complaint. Plaintiff had sued for $8.56, representing “an additional charge” to defendant under an open account between them, upon which for a period of several months in 1941, plaintiff sold drugs, medicines and medical supplies to the defendant. Each month plaintiff billed defendant for the actual goods sold and for the “additional charge,” being the Retailers’ Occupational Tax (ch. 120, secs. 440-453, Smith-Hurd’s Ann. Stats. [Jones Ill. Stats. Ann. 119.450-119.467]) on the goods. Bach month defendant remitted for the goods sold, but refused to remit the tax. In addition to allegations covering the facts outlined above, plaintiff alleged that unless permitted to collect the tax, it will be. prejudiced in competition, suffer irreparable damage and hardship in business.

Plaintiff appealed originally to the Supreme Court which transferred the cause here and this Court permitted the Attorney General of Illinois to intervene and file a brief as amicus curiae, upon his claim of a question of public importance.

The question is whether “persons engaged in the business of selling tangible personal property at retail” (sec. 441) may, regardless of the contract for goods between them, add the tax as such to the price quoted the consumer and collect it as such from him. If not, a cause of action was not stated.

It is apparent from its complaint and argument that plaintiff seeks to collect the amount claimed as tax from the defendant. It says it need not absorb the tax but may pass it on and collect it as agent for the State in the same manner as the Motor Fuel Tax is collected; and that the legislature so intended as evidenced by the provision authorizing the issuance and use of tokens — parts of pennies — to facilitate payment by the consumer to the merchant.

It is true that the merchant need not absorb the so-called Sales Tax and may pass it on to the consumer, but only as part of the sale price, not as a tax on the consumer. Winter v. Barrett, 352 Ill. 441; Vause & Striegel, Inc. v. McKibbin, 379 Ill. 169. The seller is not an agent of the State to collect the tax (Winter v. Barrett, 352 Ill. 441) he, himself, must pay it. The tax is imposed on a class of vendors which includes plaintiff; it is not a consumer’s tax. Winter v. Barrett, 352 Ill. 441; Reif v. Barrett, 355 Ill. 104; The People ex rel. Herlihy Mid-Continent Co. v. Nudelman, 370 Ill. 237; Ahern v. Nudelman, 374 Ill. 237; Vause & Striegel, Inc. v. McKibbin, 379 Ill. 169. The defendant is not liable for the tax as such.

For the reasons given the judgment of the superior court is affirmed.

Judgment affirmed.

Burke, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Justice Dady.

license: Public Domain

text:
    Jacob O. Browning, Appellee, v. Arden O. Browning and Opal B. Atkeisson, Appellants.
    Gen. No. 9,344.
    opinion filed October 29, 1942;
    rehearing denied February 2, 1943.
    Roscoe Bonjean, for appellants; Hill, Bullington & Vandever, for appellee.
   Opinion by

Justice Dady.

“Not to be published in full.’’


author: Justice Hayes.

text:
    Frank P. Hohimer, Appellant, v. Cornelius Fricke, Appellee.
    Gen. No. 9,335.

      opinion filed October 29, 1942;
    rehearing denied February 2, 1943.
    Thos. P. Reep and Jefferson Lewis, for appellant; Edward H. Golden and A. W. Lilienstein, for appellee.
   Opinion by

Justice Hayes.

“Not to be published in full.”


author: Presiding Justice Huffman.

text:
    J. L. Hallford and B. L. Tockman, Appellees, v. Katharine E. Mohrmann et al. (J. E. Bairstow, Appellant.)
    Gen. No. 9,823.
    opinion filed December 22, 1942;
    rehearing denied February 2, 1943.
    J. E. Bairstow, pro se; John V. Mooradian, of counsel; Herman M. Silverstein and Gerald C. Snyder, for appellees.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.”


author: Justice Wolfe.

text:
    Christine Hurff, Appellee, v. Harry L. Hurff, Appellant.
    Gen. No. 9,834.
    opinion filed December 22, 1942;
    rehearing denied February 2, 1943.
    Morgan & Morgan and Chester L. Anderson, for appellant; McGrath & Copeland, for appellee.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


author: Presiding Justice Sullivan.

text:
    Joseph Farnetti, Appellee, v. Francesca Mangano et al. Appeal of Ralph J. Salerno, Individually, and Trading as Rosario D. Salerno Sons, Appellant.
    Gen. No. 41,763.
    opinion filed December 30, 1942;
    rehearing denied February 9, 1943.
    Samuel Plame and Murphy, Lilliander & Gemmill, for appellant; Mark D. Cohen, for appellee.
   Opinion by

Presiding Justice Sullivan.

“Not to be published in full. ’ ’


text:
    Lictorio, Inc. and Luigi Marianelli, Appellants, v. Sears, Roebuck and Company and Sears International, Inc., Appellees.
    Gen. No. 41,811.
    opinion filed December 30, 1942.
    Bobb, Spoerri, Bourland & Harris, for appellants; William L. Bourland and Stanley K. Feinberg, of counsel; Lederer, Livingston, Kahn & Adsit, for appellees; Sigmund Livingston, Harry H. Kahn and Archie H. Siegel, of counsel.
   Opinion by

Presiding Justice Sullivan.

“Not to be published in full.’’


text:
    James T. Shealy, Appellee, v. Charles L. Schwerin, Appellant.
    Gen. No. 41,821.
    opinion filed December 30, 1942;
    rehearing denied January 20, 1943.
    Abraham W. Brussell, for appellant; Thomas J. Finnegan, for appellee.
   Opinion by

Presiding Justice Sullivan.

“Not to be published in full.’’


text:
    Rollin A. Eib, Appellant, v. John H. Gately, Appellee.
    Gen. No. 42,359.
    opinion filed December 30, 1942.
    Rothbart & Rosenfield, for appellant; no appearance for appellee.
   Opinion by

Presiding Justice Sullivan.

“Not to be published in full.”


author: Justice Friend.

text:
    Avery Brundage Company, Appellee, v. Grand Lodge of the Independent Order of Vikings, Appellant.
    Gen. No. 42,084.
    opinion filed December 30, 1942;
    rehearing denied January 20, 1943.
    John A. Linden and Michael J. Creighton, for appellant; McNab, Holmes & Long, for appellee; Allan W. Cook and Wallace B. Kemp, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    State of Ohio ex rel. Rodney P. Lien, Appellant, v. Bernard Spero, Appellee.
    Gen. No. 42,205.
    opinion filed December 30, 1942.
    Stephen A. Cross, for appellant; Kenneth B. Kirk, of counsel; Brown & West, for appellee; Lawrence J. West and Leo Spira, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Justice Scanlan.

text:
    Standard Statistics Company, Inc., Appellant, v. Charles T. Davis, Appellee.
    Gen. No. 41,884.
    opinion filed December 30, 1942.
    Jaffe & Green, for appellant; Jacob H. Jaffe and David H. Kraft, of counsel; Charles H. Borden, for appellee.
   Opinion by

Justice Scanlan.

“Not to be published, in full.”


text:
    John Werlik et al., Appellants, v. Ellsworth Murray, Appellee.
    Gen. No. 41,921.
    opinion filed December 30, 1942;
    rehearing denied January 20, 1943.
    Aronson & Aronson and Irving Goodman, for appellants; Irving Goodman, of counsel; Wyatt Jacobs and Walter A. Christopher, for appellee.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Mary Roark, Appellee, v. Eddie Roark, Appellant.
    Gen. No. 41,998.
    opinion filed December 30, 1942;
    rehearing denied January 20, 1943.
    Ellis &. Westbrooks and Joseph J. Attwell, Jr., for appellant; Joseph J. Attwell, Jr., of counsel; Prescott, Burroughs & Taylor, for appellee; Euclid Louis Taylor and Patrick B. Prescott, Jr., of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Edward J. Clancy, Appellant, v. Phyllis M. Clancy, Appellee.
    Gen. No. 42,014.
    opinion filed December 30, 1942.
    Sol R. Friedman & I. S. Friedman for appellant; Sheehan & Egan, for appellee; Roy J. Egan, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.’’


text:
    Samuel J. Graffe, Appellee, v. Marcella Graffe, Also Known as Orcello Z. Graffe, Appellant.
    Gen. No. 42,202.
    opinion filed December 30, 1942;
    rehearing denied January 20, 1943.
    Erwin M. Pearl, for appellant; Jay J. McCarthy, for appellee.
   Opinion by

Justice Scanlan.

“Not to be published in fuU.”


text:
    Burton R. Abrams, Appellant, v. Berg’s Market and Liquor Store, Appellee.
    Gen. No. 42,226.
    opinion filed December 30, 1942;
    rehearing denied January 20, 1943.
    Jacob J. Chapman, for appellant; Burton R. Abrams, of counsel; John B. Wilson, for appellee.
   Opinion by

Justice Scanlan.

“Not to be pubUshed in full.”


text:
    Estate of William Benson Storey, Deceased, Appellee, v. 199 Lake Shore Drive, Inc., Appellant.
    Gen. No. 42,236.
    opinion filed December 30, 1942.
    St. George & Davis, for appellant; Maximilian J. St. George and Mitchel P. Davis, of counsel; Alden, Latham & Young, for appellee; Wm. Tracy Alden and Sidney F. Moody, of counsel.
   Opin-

ion by

Justice Scanlan.

“Not to be published in full”


text:
    Joseph G. Jolicoeur, Appellant, v. Nelson H. Brown et al., Appellees.
    Gen. No. 42,301.
    opinion filed December 30, 1942;
    rehearing denied January 20, 1943.
    McKinley, Price & Quindry, for appellant; William McKinley and Paul E. Price, of counsel; Leo L. Donahoe and Maurice R. Marchello, for appellees.
   Opinion by

Justice Scanlan.

“Hot to be published in full.”


text:
    George Love, Appellant, v. Goldenberg Furniture Company, Appellee.
    Gen. No. 42,374.
    opinion filed December 30, 1942;
    rehearing denied February 9, 1943.
    B. G. Clanton, for appellant; Rubenstein, Haggenjos & Monarch, for appellee.
   Opinion by

Justice Scanlan.

“Hot to be published in full.”


author: Presiding Justice Burke.

text:
    Girls Latin School of Chicago, Appellee, v. L. Edward Hart, Jr. and Beatrice B. Hart. Appeal of Beatrice B. Hart, Appellant.
    Gen. No. 42,296.
    opinion filed January 6, 1943.
    Montgomery, Hart, Pritchard & Herriott, for appellant; Cassels, Potter & Bentley, for appellee; George C. Bunge and John D. De Feo, of counsel.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.’ ’


author: Justice Hebel.

text:
    Kalliope Sarelas, Appellant, v. Samuel Meyer and The Hoover Company, Appellees.
    Gen. No. 41,996.
    opinion filed January 6, 1943.
    Alfred M. Loeser and Peter S. Sarelas, for appellant; Leonard Koplin, of counsel; Kirkland, Fleming, Green, Martin & Ellis, for certain appellee; William H. Symmes, David Jacker, Charles M. Rush and John M. O’Connor, Jr., of counsel; Henry B. Rothenberg, for certain other appellee; Henry B. Rothenberg, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.’*


text:
    Theodora Weinstein and Meyer Weinstein, by Harry Gerstein, Their Next Friend, et al., Appellees, v. Samuel N. Levin et al. Appeal of Samuel N. Levin and Nathan M. Kanter, Appellants.
    Gen. No. 42,333.
    opinion filed January 7, 1943.
    Harry H. Ruskin and Isaac M. Mills, for appellants; Deming, Jarrett & Mulfinger, for appellees.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Mr. Justice Hebel Mr. Presiding Justice Burke

text:
    Arthur J. Schmitt, Appellee and Cross Appellant, v. J. Pilling Wright and Continental Diamond Fibre Company, Appellants and Cross Appellees.
    Gen. No. 42,045.
    Burke, P. J., dissenting.

      Opinion filed January 6, 1943.
    Rehearing denied February 9, 1943.
    Rosen, Francis & Cleveland, of Chicago, for appellants and cross appellees; John F. Rosen and James B. O’Shaughnessy, both of Chicago, of counsel.
    Tenney, Sherman, Rogers & Guthrie, of Chicago, for appellee and cross appellant; George T. Rogers and L. Dow Nichol, Jr., both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendants from a decree entered by the court confirming the master’s reports, decreeing that certain real estate, machinery and equipment be impressed with a trust and ordering that the cause be referred to a master to take an accounting upon the basis fixed by the decree.

The plaintiff on November 29, 1932, filed his original complaint in chancery against the present defendants and others. He asked for a decree (1) granting him leave to redeem certain capital stock in Walnart Electric Mfg. Company from a chattel mortgage; (2) for an accounting; and (3) for a conveyance of certain real estate and personal property to the stockholders of the Walnart Company. Certain amendments were filed by plaintiff to the original complaint. General and special demurrers were filed by defend-. ants. The general demurrer and a special demurrer based on laches were sustained by the court and a decree entered dismissed the complaint for want of equity. An appeal was taken by plaintiff to the Illinois Supreme Court, which held that no freehold was involved and transferred the cause to this court. (Schmitt v. Wright, 357 Ill. 509.) Subsequently this court reversed the decree and remanded the cause. (Schmitt v. Wright, 283 Ill. App. 628 (Abst.) After remandment on January 24, 1938, plaintiff by leave of the trial court, filed the amended complaint now before this court. The amended complaint asked for a decree (1) granting leave to plaintiff to redeem certain capital stock of Walnart Electric Mfg. Company held by defendants under an agreement of May 4, 1925; (2) for an accounting; and (3) that a trust be declared in certain real estate and personal property in favor of plaintiff, and that the same be ordered conveyed to plaintiff and other stockholders of Walnart. Thereafter the suit was dismissed as to all defendants except Continental-Diamond Fibre Company, a corporation, and Wright, appellants here. Answers of defendants to the amended complaint were subsequently filed. The cause was referred to a master in chancery to take proofs on the questions raised by the pleadings as to the right of plaintiff to relief and, if it was determined that plaintiff was entitled to an accounting, to report his conclusions as to the proper scope and basis for such accounting. Testimony was taken before the master and after arguments the master made his original report., Objections to the report were filed by defendants, some of which were sustained and others overruled. The master, acting upon such objections, made a supplemental report to which both plaintiff and defendants filed objections. These objections, with one exception, were overruled by the master. By order of court the overruled objections of defendants and plaintiff to the master’s reports were made exceptions in the trial court. These were" argued in the trial court and were overruled by it with one exception (not material on this appeal), and the decree above mentioned was entered by the court, from which decree defendants appeal, and from which plaintiff takes a cross-appeal.

The theory of plaintiff’s case is that defendants took over, held and operated the Walnart properties as security for the payment of a debt, under a contract that entitled them to hold and operate the business and properties for a period of four years, unless such indebtedness should be paid sooner, either through the operation of the business, or by the plaintiff; that during this period defendants made huge profits, both through conducting the business and from materials which they (as operators of Walnart) purchased from themselves at prices from 10 per cent to 20 per cent above those charged to others; that these profits were largely in excess of the amount of the indebtedness; but that instead of returning plaintiff’s stock in Walnart to him, as agreed, they wrongfully took over while still acting as trustees the business, customers, secret processes, patents, and all of the other properties as their own, without the payment of consideration and without accounting to plaintiff and to other stockholders of Walnart therefor.

The defendants’ theories of the case are that the May 4, 1925 contract did not create a trust relationship ; that the intention expressed in the instrument is controlling; that the contract gave defendants the express power and right at any time after its date to sell or liquidate the Walnart business, with or without plaintiff’s consent; that neither did the true circumstances under which the contract was made create an implied trust in the Walnart business, and that even if there was a trust, plaintiff (under his theory the cestui que trust) expressly consented to the sale of the Walnart business, voluntarily executing on behalf of Walnart, documents of conveyance; that these documents constituted actual conveyances and were understood by plaintiff to be such before and after their execution; that plaintiff did not question these conveyances within a reasonable time after they were made but, having full knowledge of all of the material facts, waited for a period of approximately six years after he executed the documents before making any protests or contentions; that, if these documents were valid, plaintiff was not entitled to relief because Ms entire theory was predicated upon the proposition that Walnart was entitled to profits made in the operation of the Walnart premises after September 30, 1926, the date of the bill of sale; that the opinion of the Appellate Court on the. first appeal is not res adjudicata on the question of the existence of a trust, because (1) the case was not decided in this court on its merits (the allegations of plaintiff in Ms original complaint, as amended, before this court having been, on demurrer, taken as true); (2) the allegations, theory and prayer of the amended complaint and the proof in their support now before this court, are essentially different from the case before the court on the former appeal; and (3) the order of this court reversing and remanding the cause was not appeal-able; that on plaintiff’s trust theory, the relationship of the parties was, in any event, terminated in May 1929, when defendants disposed of the remaining Walnart assets pursuant to plaintiff’s express direction that this be done; and that if plaintiff ever did have a cause of action, it was barred by his subsequent laches and course of conduct.

Plaintiff suggests with reference to his cross.-appeal that defendants’ counsel’s statement that the master held the taking over by defendant of the properties in 1926 to be a sale, is based upon their own construction of the master’s language in his supplemental report and not upon what the master says. It is contended by plaintiff that what the master says, in his supplemental report is that plaintiff • is not entitled to an accounting for profits made by defendants after October 1, 1926, but only to an accounting for the use of the business, building, machinery and equipment after October 1, 1926. That the argument made by defendants’ counsel is that the master intended by this language to hold that the instrument which counsel call a bill of sale “constituted a valid sale as far as the profits after October 1, 1926, were concerned, but nevertheless found that it was not a valid sale as far as tangible assets described in the bill of sale were concerned.” Plaintiff urges that the decree materially modified the foregoing finding of the master by providing for the consideration of the profits in measuring the value of the use, which fact counsel has failed to mention. It is further urged that that language of the master or the language of the decree cannot be construed to mean that the so-called sale was valid and that defendants, as trustees, were entitled to keep all profits wrongfully made by them from the trust. However, since there is a difference of opinion as to the construction of the above language, plaintiff asks this court to clarify it, or if this court believes that said language is susceptible of the construction that defendants’ counsel give it, then to reverse that paragraph of the decree (paragraph C) and to state the correct rule of law. The cross-appeal is filed solely for that purpose.

The conclusions of the master’s report and the decree are substantially as follows: The master found against plaintiff respecting three of the material allegations of his complaint and of his theories, finding in effect that (1) plaintiff had not sustained his allegation that defendants represented to plaintiff prior to the execution of the May 4, 1925 contract that Walnart could pay for Continental materials purchased on credit at its convenience; (2) that plaintiff had failed to prove that the September and October 1926 bill of sale and lease were secured on defendants’ representations that they were to be used by defendants for the purpose of facilitating the operation of Walnart by defendants for Walnart’s benefit; and (3) (passing upon plaintiff’s theory which is the basis of his case) that Walnart was not entitled to the profits in the operation of Walnart premises by Continental after the date of the bill of sale and lease. Notwithstanding the master’s finding that the hill of sale was a good conveyance he recommended that defendants . . account for the assets, business, goodwill, patents and patent-rights, taken by defendants under the assignment or bill of sale.” Defendants suggest that this recommendation was apparently predicated on the master’s opinion that the Walnart assets were trust property; and that he so concluded largely because of this court’s opinion on the first appeal. It was the master’s opinion that the law relating to trusts was applicable, this law being construed by him as to entitle plaintiff to relief.

The defendants in their brief recited a number of facts as being undisputed but call attention to matters that are in dispute, and from defendants’ theory it is these admittedly disputed factual matters which are the subject of this controversy. For the purpose of' determining whether the court was in ertor in entering the decree, these disputed matters of fact must be considered. These factual matters in dispute, as recited in defendants’ brief, are as follows: (1) The contention of plaintiff that he was the inventor of a secret process which Continental was desirous of obtaining for its own uses and the implication that defendants’ acts which followed their learning of this process were done in pursuance to a plan to appropriate the invention to their own uses. (2) The contention of plaintiff that Continental urged Walnart to accept shipments of raw material from Continental on credit upon the understanding that they could be paid for by Walnart at its convenience. (3) The contention of plaintiff that his signature to the May 4, 1925 contract was procured by means of threats of bankruptcy proceedings by defendants. (4) Plaintiff’s contention that defendants kept secret from plaintiff information respecting the conduct of the business from May 4,1925 until September 1926 and that plaintiff was without knowledge of Walnart affairs during that period. (5) The contention of plaintiff that the September 30, 1926 lease and the October 1, 1926 bill of sale were not intended to be absolute conveyances, but that the intention was that they were to be used by Continental for the purpose of effecting economies in Walnart operations and of facilitating the operation of the Walnart plant for the use and benefit of Walnart. (6) The contention of plaintiff that he first obtained knowledge of the matters upon which he predicated his complaint shortly before the filing of his suit.

The first matter before this court for consideration is whether under the May 4th contract the stock of plaintiff was pledged as security for the payment of a debt owing by Walnart Electric Mfg. Co. to Continental Fibre Company. And, if so, whether the pledgees, when they entered into possession of the business and properties and assumed full and sole control of the management, business, employment, purchases and all other business relating to and concerning the Walnart Company, then held the stock and the business and properties in a fiduciary capacity, subject to all the duties and liabilities of trustees. In plaintiff’s argument it is urged that defendants, in their brief on the former appeal, presented and argued the same question that is presented in Point I of their present brief, i. e., that the May 4, 1925, contract did not create a trust; that this court thereupon construed the contract to create a trust; and that since then the circuit court and the master have construed it in the same way.

Upon defendants’ argument on the former appeal (Schmitt v. Wright, 283 Ill. App. 628 (Abst.), that the contract constituted a sale, both of plaintiff’s stock and the business and properties of the Walnart Company, this court said:

“It is well to consider in this connection that there was no absolute transfer of the properties of the Walnart Electric Manufacturing Company, but that the transfer took place only to secure the payment of the amount due to the Continental Fibre Company.”

Plaintiff goes on to discuss the facts and says that in some of his letters, Wright stated that plaintiff’s only right was to exercise an option to repurchase the properties, but in the same letters he spoke of the contract as made to secure a debt. It was upon the theory that the contract was a sale with an option to plaintiff to repurchase that the defendants claimed the right to all profits made by Walnart. However, Wright told plaintiff in his letter of January 12, 1927, that Walnart was entitled to the profits made by it, and in his letter of . January 28, 1929, he told plaintiff that the purpose of the contract was to secure Continental and make the Walnart Company able within a period of four years to repossess their property. It is urged that there is no ambiguity in the contract on this question. This court, in its former opinion, said that if, at any time within the period of four years, the Walnart Company or plaintiff repáid Continental from the receipts of the business the sum claimed to be due, then the contract would terminate.

In support of the defendants’ proposition that the May 4th contract did not create a trust, counsel for defendants rely upon four propositions, namely: (a) the intention of the parties is to be gathered from the entire instrument; (b) equity will not construe a trust when a discretion to act or not to act is given; (c) even if there was a trust, the subject of it was plaintiff’s stock and not the Walnart properties, and (d) an implied trust must be established by clear and convincing proof. Plaintiff points out that propositions (a) and (b) may be answered by the fact that if there was given any discretion to act or not to act, or if there was any intention that is not clearly expressed in the instrument, such a discretion was exercised and such intention clearly made manifest when immediately after its execution the defendants accepted the trust and went into possession of the properties; that proposition (c) has not heretofore been presented in the pleadings, or in any objection or exception, that plaintiff does not know what it means as it has not been argued, but that apparently defendants are here contending that defendants could do anything they wished with the business and properties because they were trustees only of plaintiff’s stock. It is further urged that defendants held the legal title to plaintiff’s stock as trustees, and that by such fact and by entering into the possession and control of the business and properties and by the express terms of the contract they became trustees of the business and properties, as held by this court in its former opinion. As to proposition (d), it is plaintiff’s contention that the May 4th contract by its terms provided for the pledging of his stock to secure a debt and that it gave, as additional security, the right to enter into possession and control of the business and properties for the purpose of repaying the defendants from the operations. It appears that Wright had won plaintiff’s trust and confidence prior to the execution of the May 4th contract; that plaintiff consulted and advised with Wright prior to that date regarding the purchase of his property, the purchases of supplies, etc.; and it is urged that his belief in Wright’s sincerity and honesty influenced him in signing the contract without consulting other counsel, and that this trust and confidence led him to believe all that Wright told him. It is urged that this trust and confidence was operating when the changes were made in September 1926, and when plaintiff wrote to Wright on September 25, 1926: “I explained to Mr. Du Had-way in assigning Walnart to Continental that I did not know of anyone except yourself in whom I would have sufficient confidence and in whose integrity I could not be mistaken and that is why I would assign Walnart without any definite agreements pertaining to my and Walnart’s future.”

The questions involved in this appeal, therefore, depend upon the object and purposes of this May 4th contract. It would appear from the pleadings as well as the evidence that the contract was a pledge of the plaintiff’s stock to secure a debt, giving the defendants as additional security the right to enter into possession and control of the business and properties for the purpose of repaying the debt from the operations.

Defendants’ next point is that in the court below plaintiff’s counsel contended and the master upheld the contention that the opinion of this court upon the former appeal, holding that defendants were trustees under the May 4th contract was res adjudicata upon that question, but that said opinion was not res adjudicata because the case on the first appeal was not decided on its merits; that the case now before the court is essentially different from the case on the first appeal; and that the order reversing and remanding the case was not a final order. However, as contended by plaintiff, it seems that the amended complaint nowhere alleges that the former opinion was res adjudi- . ■ cata nor even mentions that opinion, and that no such contention was at any time made to the master or the court below. It appears that the master made no such finding, no objection or exception was filed to any such finding, and no error is cited in defendant’s brief upon that question. No reference is given to any place in the record or the master’s report where such a contention or finding was made. On the other hand, it appears that both the master and the court state their own independent opinions to the effect that the May 4th contract created a trust.

In arguing that the case now before the court is not essentially different from the one on the first appeal, plaintiff points out that the amended complaint makes only three changes in the original complaint, none of which affects in the slightest degree the question whether the May 4th contract created a trust. These changes were, first, an admission that plaintiff executed, as president of Walnart, the September 30 and October 1 lease and assignment. In his letter of September 29 Wright had sent to plaintiff, for his signature, copies of the lease and assignment and the last page of the minutes of the directors’ meeting of September 27. Plaintiff had never signed those documents but had them in his possession, and these he attached to the original complaint as exhibits. He alleged that attorneys for defendant had advised him that the originals were signed by him, hut, though requested, they refused to exhibit the documents. Wherefore, plaintiff said that such documents, if signed, were forgeries or that his signature had been obtained either surreptitiously or by covin or fraud, and misrepresentation as to the true nature of the documents. When plaintiff filed his amended bill, he accepted the statement of defendants’ counsel that he had signed a copy of each and he amended his bill so as to state the truth, if such statement was the truth. The second change was the elimination from the original complaint of any charges of fraud and conspiracy. The third change was the omission of the allegation that the May 4th contract constituted a chattel mortgage. When we consider all the facts presented in this record, it would still appear that the conclusion is justified that the May 4th contract created a trust relationship.

Plaintiff’s next contention as applied to the facts of this case is that it is the duty of trustees to administer the trust solely-in the interest of the cestui que trust, and that they can make no profit from the trust for themselves and, secondly, that in all transactions between the trustee and the cestui que trust it is the duty of the trustee to advise the cestui que trust of his legal rights and of all the facts and circumstances of the case, and the burden of proving the absolute fairness of the trustee’s transactions and that there is no fraud, concealment, or inadequacy of price or inequality of any bargain, and no advantage taken by the trustee of any information acquired by him as trustee, is upon the trustee who seeks to justify the transaction. Plaintiff cites a number of cases in support of the above statement of law, among which is Commercial Merchants Nat. Bank & Trust Co. v. Kloth, 360 Ill. 294, where the court said:

“Where one voluntarily assumes the confidential relation towards another, he will not be permitted, at the expense of such relation, to deal in the property of the opposite party for his own pecuniary profit. . . . The burden is on the fiduciary to show the fairness of any transaction between him and the grantor, the mental capacity of the grantor, and that the transaction was just and equitable; . . . Before a court of equity will permit a transaction between parties occupying a fiduciary relation to stand, the dominant party who has profited thereby must overcome the presumption of fraud by clear and convincing proof that he has exercised good faith and has not betrayed the confidence reposed in him.”

And in the case of Meinhard v. Salmon, 249 N. Y. 458, Mr. Justice Cardozo used the following language:

“A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘Disintegrating erosion’ of particular exceptions. Wendt v. Fischer, 243 N. Y. 439, 444,154 N. E. 303. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.”

And in Dixmoor Golf Club, Inc. v. Evans, 325 Ill. 612, the court said:

“The law is well settled that a trustee cannot without a breach of the trust deal with its subject matter in such a manner as to make a profit for his own benefit. It requires no very keen moral perception to recognize the obvious justice of this universal rule of law, of justice and of morality.”

The defendants suggest that the master found that, as a matter of law, the May 4, 1925 agreement created a fiduciary relationship and that defendants held the stock of plaintiff and the properties of Walnart as trustees. It is stated that the conclusions of the master and the decree appealed from are based solely on the trust theory, and urged that the decree is erroneous if an incorrect conclusion was reached respecting the effect of the May 4th transactions. The contract, defendants urge, is not in form a trust agreement and therefore it is necessary to look beyond the agreement itself to determine whether it is different in legal effect from what it purports to be and that, for this reason, the circumstances surrounding the contract’s execution require that they be summarized in some detail. Then defendants go on to suggest some of the facts involved. But, as we understand the objects and purposes of the May 4th contract, the contract was for the security of repayment of a debt to defendant, turning over the stock of the Walnart Company owned by plaintiff as well as the properties of the Walnart Company to be used for the purpose of paying the debt, and subject to plaintiff’s right to the return of the stock upon repayment of the debt.

Plaintiff calls this court’s attention to the fact that when counsel say that the contract expressly gave the power to defendants to sell, liquidate or take over the properties, they are referring to the purpose clause in the preamble and not to anything in the contract proper; that the language to which they refer is not anywhere repeated in the contract; and that it is the well settled law that a preamble or purpose clause to a contract forms no part of the contract proper unless repeated or expressly referred to therein in such a way as to make it a part of the contract, or unless it is necessary to refer to such purpose clause for the purpose of explaining an ambiguity in the contract. No ambiguity is pointed out or claimed to exist, and it is to be noted that.this contract was drawn by defendants’ counsel. In the case of Wilson v. Towers, 55 F. (2d) 199, the court said:

“The rule has been long established that ‘if the recitals are clear and the operative part is ambiguous, the recitals govern the construction. If the recitals are ambiguous, and the operative part is clear, the operative part must prevail. If both the recitals and the operative part is clear, but they ^are inconsistent with each other, the operative part is to be preferred.’ ”

Again, in Chicago Daily News v. Kohler, 360 Ill. 351, our Supreme Court said:

“The operative part of the agreement is clear and free from ambiguity. Mere recitals, whether they are found in a preamble or at the end of a contract, are distinguishable from obligations or promises. The contract itself is one of bargain and sale, and its clearly expressed stipulations cannot be controlled by but must prevail over the recitals.”

It is urged by plaintiff as a fact that under no possible definition of the terms can the lease or agreement be construed either as a sale by Walnart to Continental or as a liquidation of Walnart. A sale contemplates a free offer and acceptance, a seller and purchaser dealing at arm’s length, and the fixing and payment of a purchase price. On the question, the master says that Wright and Bonham, as directors of Walnart, treated plaintiff as an employee and instructed Mm as to Ms duties; that they dictated the plan that resulted in the lease and bill of sale (it will be remembered that no one at that time called the agreement a bill of sale), and that they took over all of the assets and business of Walnart with the exception of the building, macMnery and equipment, at their own price and in their own way. Upon consideration of the transactions, we are of the opmion that there was neither a sale nor a liquidation, and that the transaction by which defendants took over the business and properties cannot stand.

From an examination of defendants’ brief, their third point is predicated on the theory that the lease and agreement constituted a sale of trust property by a trustee and that such a sale was not void but merely voidable. Plaintiff contends that under tMs point defendants make a number of misleading and incorrect statements. Defendants say that Walnart’s debt to Continental had increased between May 4,1925 and September 1926 to the extent of $61,225.35. Plaintiff calls attention to this statement and says that there was no such evidence and that such was not the fact, and points out other statements of defendants’ counsel which he contends are misleading and inaccurate. The facts appearing in the master’s report are approved by this court.

Defendants argue that the mere fact that a fiduciary relationship exists does not invalidate transactions between the parties, but when we come to consider the question, there is nothing in the record wMch militates against the conclusion reached by the master in his report recommending an accounting under the terms fixed by the report as well as the decree.

Upon the question of whether there was a ratification, confirmation or acquiescence by plaintiff in any of the acts of the defendant trustees, such as constitute an estoppel against a recovery in this action, the defendants argne that plaintiff had knowledge of everything that the trustees did in the operation of this business — the purchase of material, the prices paid for it, profits that the trustees made, the execution of the lease and assignment, the change in the operation on October 1, 1926, and all other things herein complained of — and that he thereby ratified and acquiesced in those acts and is now estopped from complaining of them. Plaintiff, however, contends that there is no evidence anywhere that plaintiff acquiesced, expressly or otherwise, in any of those matters; and further, that the law on the subject of ratification and acquiescence is clear; that like laches, they are a form of equitable estoppel and are governed by the rules that apply to estoppel. (Bogert on Trusts and Trustees, pages 941, 943.) And in support of plaintiff’s position, In re Ungrich, 190 N. Y. S. 187, is cited.

Plaintiff’s final point is that the decree requiring the trustees to account for profits wrongfully made by them from the possession and operation of the trust properties, together with the findings of the master that they should do so, is supported by the pleadings and proofs. Defendants contend that the master’s finding that Continental sold $400,000 of material to Walnart, was not based upon any allegation in the pleadings and was not supported by the evidence, but it is pointed out by plaintiff that the evidence from which the master made this finding is as follows: Sales by Walnart from May 1, 1925 to December 31, 1925, $419,254.65; sales by Walnart from January 1, 1926 to October 1, 1926, $193,014.95; total $612,269.60. The mark-up in price of finished products above cost was 5 per cent on fabricated bakelite, and 20 per cent ■ to 25 per cent on radio and fabricated parts; that after September 1926, there was a higher mark-up, possibly 35 per cent; and that the master in his report adopts the percentage most favorable to defendants of 25 per cent. That if $612,269.60 equalled 122% per cent of cost, which omits all products sold at a lower mark-up, the cost of those materials to Walnart would be $499,812. That over 80 per cent of all those materials was purchased from Continental, and that over 80 per cent of $499,820 is over $399,850. The master says $400,000. Plaintiff carries these computations further to show that Continental’s selling-price to Walnart was 40 per cent above its cost of production; that there would, of course, be no cost of sales in selling- to themselves. That they operated Walnart exactly as they would a branch factory. That a 40 per cent mark-up by Continental above its cost of production represents a profit of 28.57 per cent of its selling price, or $114,238.85, so that by October 1,1926 the trustees had made a profit on materials purchased from themselves of $28,000 over and above the $86,000 owing them by Walnart. And that thus, prior to September 26, the indebtedness was fully paid and it then became the trustees’ duty to return plaintiff’s stock and the Walnart business and properties to its stockholders. Plaintiff cites, in support of his contentions, the case of Magruder v. Drury, 235 U. S. 106.

When we come to consider all the evidence and the suggestions made in support of and against the master’s report, we agree with the suggestions offered by plaintiff on the question of an accounting, that the decree be affirmed.

One of the defenses interposed was that of laches, but on this question the master found that the record was clear, that plaintiff reposed confidence and trust in Wright and that it was not until 1932 when he left the Cleveland office of Continental and had conversations with Dushek, the bookkeeper and accountant for Walnart and later for Continental, that he learned of the large profits made subsequent to October 1, 1926 and questioned the representations made to him by defendants; that during the entire period following October 1,1926 he was in the employ of the defendants and presumably still had faith and confidence in the truth of the representations made to him by them. • ■ Upon considering these facts, we find they do not support defendants’ defense of laches. It is a familiar rule that laches is an affirmative and an equitable defense, and under the circumstances we are of the opinion that there was no error in this regard.

The question remaining to be disposed of is the matter of plaintiff’s cross-appeal. In support thereof, plaintiff contends that the trustees are accountable for all profits made out of the trust property, and that where they wrongfully take and retain trust property for their own use, they are liable for compensation for such use and are entitled to retain no profits made therefrom. Plaintiff’s further suggestions are that the court below and the master have construed the May 4, 1925 contract as creating a trusteeship; that the Continental Fibre Company and the defendants took over the Walnart Company and its properties and operated them as trustees under that contract; that the master has held that because of that fiduciary relationship such trustees were not entitled to retain for themselves the profits made by the company or profits made by themselves from their control and operation of the company. The master reached the conclusion that the taking of the properties by defendants was wrongful and that the properties had been wrong- - fully withheld from plaintiff by defendants, and that therefore they must account and pay for the use of the business, building, machinery and equipment, whether or not they made any profits therefrom. It would appear that this conclusion was in accordance with the law, and that up to that point the master’s finding is clear.

It is plaintiff’s contention that the court, by its decree intended to provide, as found by the master, that the defendants were trustees under the May 4th contract and as such were not entitled to make or retain for themselves any profits from the trust; that when on October 1,1926 they wrongfully took over the property as their own, destroyed Walnart as a company, its business and good will, while at the same time swearing that they did not intend to conduct any such business in Illinois and telling plaintiff that they were merely changing the method of operating the plant, that the May 4th contract was still in full force and effect, that the affairs of the company were being held intact as a going concern subject to his right to take back the whole company at any time upon payment of the amount mentioned in the contract and that if any profits accrued they would be held as a part of the assets, there then should be applied a different measure of accounting from that applicable to the period prior to October 1, 1926; that the trustees should then be held accountable, not merely for profits made by them, but for the business and all of the other assets and properties wrongfully taken by them and for the value of their use.

However, upon consideration of this cross-appeal, we find that plaintiff is asking that the decree be affirmed, and, further, that, in affirming it, this court hold that from and after October 1, 1926, the trustees shall be entitled to no profits made by them from the use of the assets and properties, business, building, machinery and equipment of Walnart Company, and that, if on such accounting the court shall find that the trustees made profits in excess of the reasonable value of the use of such assets and properties, then the true measure of the value of the use thereof shall be the profits so made. This court is asked to affirm the decree but change the method of accounting. In our opinion, to do so, we would be obliged to change the theory of and modify the decree. We cannot grant the relief plaintiff seeks unless we reverse the decree. Mo part of the decree entered in the instant case was adverse to the plaintiff and, hence, plaintiff was not in a position to file a notice of or prosecute a cross-appeal. In such cases, he does have the right to sustain the judgment or decree upon any ground warranted by the record irrespective of whether the particular reasons given by the trial judge or his specific findings are correct.

Having reached the conclusion as we have upon the merits of the appeal, we are of the opinion plaintiff is not entitled to question the decree without practically recognizing that the decree is erroneous. Having asked that the decree be affirmed, we would not be justified in following plaintiff’s contentions on the question of modifying the method of accounting. For the reasons stated, the cross-appeal of plaintiff is denied, and the decree affirmed.

Decree affirmed.

Kilby, J., concurs.

Mr. Presiding Justice Burke

dissenting: The instrument did not create a trust, nor did the facts and circumstances attendant upon its execution raise an implied trust. The effect of plaintiff’s contention as to the obligation assumed by defendants would be that during the four years following May 4, 1925, Continental was under a duty to operate and manage the Walpart properties with no compensation to itself and with only the knowledge that if it were successful in its operation it would -recover the $86,000 debt which Walnart owed. Beyond that, under plaintiff’s theory, Continental was entitled to nothing. According to plaintiff’s theory, Continental assumed the obligation of carrying on a business in Chicago, undertaking to pay its financial obligations, undertaking to endeavor to put the company on a sound financial basis through advances and through loans secured from bankers; and it would have made no difference if Walnart had continued in financial difficulties throughout the four-year period; it would have made no difference if Walnart lost large sums of money and proved itself unable to operate at a profit; it would have made no difference if Continental had been required to pour hundreds of thousands of dollars into Walnart in order to maintain its operations; and none of these things would have made a difference because Continental had obligated itself by the May 4th contract to keep the business running for plaintiff’s benefit, and, if at the end of four years plaintiff was not able or did not wish to pay Continental the amount of Walnart’s debt, then plaintiff would have said, “I don’t wish to redeem my stock, you may have the company.” It cannot be doubted that if at any time after the May 4th contract was made, defendants acted under the terms of the contract and threatened to sell, liquidate or dispose of the business of Walnart, and plaintiff had commenced a suit to enjoin such threatened disposition on the ground he now urges, namely, — that the Walnart business was trust property and could not be sold until after the expiration of four years — that such suit could not have been successfully maintained. The law is well settled that where a trust is sought to be established, every word used in the instrument wherever found must, if possible, be given weight in determining the effect of the instrument. Bear v. Millikin Trust Co., 336 Ill. 366; Ellis v. Flannigan, 279 Ill. 93, 97. In my opinion the words used in the contract do not show an intention expressed or implied to create a trust in the Walnart properties. In arriving at the intention, the court should look to the preamble as well as to the operative part of the contract. The preamble expressly negatives an intention that the Walnart business and properties be held in trust for any definite period of time.

I agree with the contention of the defendants that even if the May 4th instrument created a trust in the Walnart business and properties, plaintiff by Ms own voluntary acts agreed to a disposition of the properties which he contended constituted the res of the trust. Plaintiff, in support of his theory, testified in detail to the alleged conversations had with defendants’ representatives as to developments in Walnart’s affairs after May 4, 1925. This testimony was given about 14 years after the conversations allegedly took place. The testimony given by plaintiff as to these conversations is uncorroborated. In my opinion, the letters admittedly passing beween the parties and other documentary evidence tell the true story. Plaintiff contends that for six years after the bill of sale was executed (September 30, 1926) he believed that Walnart was being operated for his benefit and that Walnart was entitled to the profits of operation. The letters and other documents in the record, written by the parties at the time the transactions took place and before any controversy had arisen, disprove plaintiff’s contention and show clearly that the defendants acted honorably and fairly in all their transactions with the plaintiff. I am convinced that the plaintiff was fully aware of what was transpiring and that he acted with full knowledge of his rights. Walnart was hopelessly involved financially. Plaintiff was willing to have Continental take over the business. Shortly after the October 1926 documents were executed, the name “Walnart” was taken from the Walnart building, from the delivery trucks and the telephone directory, and the lock on the door of the premises was changed. Billings and correspondence thereafter appeared on the letterheads of Continental, Walnart being designated as the Chicago factory of Continental. Everything that was done in and about the premises and business of Walnart showed the change of ownership from Walnart to Continental. On January 8, 1927 plaintiff wrote Wright acknowledging receipt of a notice of a directors’ meeting of Walnart to be held on January 11, 1927. In this letter plaintiff said he had been reviewing recent events pertaining to Walnart, having in mind some future date when he would again operate that plant; that plaintiff objects' to defendants’ charging Walnart interest on the Walnart notes, saying that this seemed entirely contrary to the understanding to the effect that in consideration of the dollar per year lease, all expenses, including interest, should be borne by Continental. This letter continued: “Now in this manner, you having assumed all of Walnart’s assets and means of income, are further adding interest charges on money being used for your benefit without providing an income to offset that expense.” This letter clearly recognizes that Continental was rightfully operating the business in its own behalf and urged that because such was the case, interest should not be charged to Walnart.

Walnart’s real estate, machinery and equipment, having been excluded from the bill of sale, delivered in 1926, was thereafter and until May 1929 owned by Walnart. In September 1926 the premises and the plant of Walnart were leased to Continental. It was agreed that Walnart close its business, that all the business, good will, patents and patent rights of Walnart be assigned to Continental in further consideration of the payment during the period of the lease by Continental of current taxes, premiums on fire insurance policies, interest on two mortgages on the property, and in further consideration of Continental not bringing suit against Walnart for collection of its claims, based on all or any part of the indebtedness due by Walnart. The originals of the bill of sale and the lease were signed by plaintiff as president of Walnart between September 22, 1926 and September 30, 1926. On January 9, 1929 Wright wrote to plaintiff calling his attention to the fact that the contract of May 4, 1925 would expire in a few months and asked plaintiff if he desired to repossess himself of Ms stock covered by the May 4th contract. Plaintiff replied to this letter on January 14, 1929. On January 28, 1929 Wright replied to plaintiff’s January 14th letter, enclosing an extract from Continental’s books "showing- the amount owing Continental by Walnart to be $216,687.60, and stating- that if Walnart did not liquidate this indebtedness by the expiration date of the contract, Continental would take formal possession of the property. TMs aggregate sum of $216,687.60 is made up of various debts of Walnart theretofore paid by Continental, and all debts owing to Continental from Walnart, less certain credits given Walnart. It was admitted in the complaint that these debts were properly chargeable to Walnart. On February 9, 1929 plaintiff replied to Wright’s letter of January 28, 1929, saying that he examined the statement showing the debt due from Walnart to Continental as $216,687.60, and that this amount was approximately correct. In that letter he also asserted that when he stated that the amount was approximately correct he questioned Wright’s justi-fication for charging interest amounting to about $24,000 “because during that period the property was operated by and for the benefit of yourself and under the lease contract there was no income to offset this interest charge.” In the letter he also called attention to the indebtedness statement and said that omitted from the statement were current liabilities amounting to $61,222.25, which properly should be credited to Continental. While in his letters, plaintiff insisted that interest was not chargeable to Walnart, in his pleadings in this case plaintiff does not allege that the items of interest were improperly charged to Walnart. On May 10, 1929, at a meeting of the stockholders of Walnart, a resolution was passed reciting that Walnart was indebted to Continental in the sum of $216,687.60; that WaMart had for several years past ceased to do business, but retained the title to the Green street premises in Chicago. At this meeting it was resolved that the officers of Walnart were authorized to convey by warranty deed to Continental the Green street premises, machinery, etc., and to have the value of the real estate applied toward the repayment of the indebtedness of Walnart to Continental, the latter then being the only creditor. The minutes of this meeting were read and approved in writing by plaintiff. On May 14, 1929 a deed was executed by Walnart conveying the Green street real estate to Continental. On April 24, 1940 plaintiff signed and sent to Wright a proxy for a meeting of the stockholders of Walnart, the meeting to be called for the purpose of passing a resolution dissolving the Walnart corporation. A certificate of dissolution of Walnart was filed with the Secretary of State of Illinois on June 25, 1930. Plaintiff’s contract of employment was terminated on May 1, 1932. In August 1932 a controversy arose with respect to plaintiff’s employment contract with Continental. On November 29, 1932 plaintiff filed his complaint in the instant case. Shortly before the complaint in the case at bar was filed, plaintiff brought suit against Continental in the United States district court, claiming damages arising out of an illegal termination of plaintiff’s employment contract. This suit resulted in a verdict and judgment for defendant Continental. Judge John Barnes, who presided at the time, entered a finding of fact that the employment contract was rightfully terminated by Continental. Upon plaintiff’s appeal to the United States circuit court of appeals the judgment of the district court was affirmed. A careful reading of the record establishes that plaintiff was possessed of full knowledge of all details of the business of Walnart between May 4, 1925 and October 1, 1926; that in fact he was in full control of the operation of Walnart during that period, except for the handling of credits. Being in possession of all the material facts he agreed to every transaction of which he later complained. The master found that during that period plaintiff “was in full knowledge of the details of the Walnart business and activities.” I agree with the contention of defendants that the master’s ultimate finding that Continental sold $400,000 in materials to Walnart between May 4, 1925 and October 1, 1926, upon which defendants made a profit, was not based on any allegations in the pleadings; was not supported by the evidence in the record; and that the proof shows that plaintiff acquiesced in sales made by Continental, receiving the benefit of same, and was therefore estopped from obtaining any advantage growing out of such sales. Plaintiff knew that Walnart could get materials from no other source and that if Continental refused to sell materials to Walnart, it would, of necessity, have immediately been forced to cease operations.

I agree with the contention of defendants that the master’s reports, which the decree affirmed, do not conform either to the theory of the complaint or to , the proof. The master found that the September and October 1926 conveyances constituted a valid sale as far as profits after October 1, 1926 were concerned, but nevertheless found it was not a valid sale as far as the tangible assets described in the bill of sale were concerned. The finding that plaintiff was entitled to relief was not based on any allegation appearing in the complaint and was made despite the sole theory of the complaint that Walnart was entitled to profits after October 1, 1926. It will not be disputed that the bar of laches begins to run from the time that the facts complained of would have been discovered by the exercise of reasonable diligence. Plaintiff alleged that he did not know until 1932 that the Walnart debt to Continental had been paid prior to December 31, 1927, “out of the operation and net profits.” However, the record shows that as early, as 1927, when plaintiff was working for Continental in Chicago, he had figures before him showing that large profits were being made out of the operation of the Walnart premises. Plaintiff admitted that he conferred with his attorney in 1930, two years before the instant suit was filed, with reference to the Walnart dealings, and showed him the letters and documents pertaining to these transactions. I am of the opinion that the decree should be reversed and the cause remanded with directions to dismiss the complaint for want of equity.


author: Mr. Presiding Justice Matchett

text:
    Christ Nogulich and Sophie Nogulich, Appellees, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 42,198.

      Opinion filed January 25, 1943.
    Rehearing denied February 9, 1943.
    Hoyne, O’Connor, Rubinkam & Melaniphy, of Chicago, for appellant; Nathaniel Rubinkam and John C. Melaniphy, both of Chicago, of counsel.
    Irving G. Zazove, of Chicago, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In a suit on an insurance policy issued February 1, 1939 on the life of plaintiffs ’ daughter Violet, in which plaintiffs were named beneficiaries,-there was a trial by jury with a verdict of $1,084.60 against defendant on which judgment was entered.

The complaint alleged the issuance of the policy, the payment of the premiums, the death of Violet on December 7,1939, when the policy was in force, proofs of loss and demand for payment, vexatiously refused.

The answer of defendant set up as a defense that certain answers of the insured contained in Part B of the application made January 4,1939 were “untrue and false and were known by the said Violet Nogulich to be untrue and false,” in particular in response to an inquiry whether she had “ever been an inmate of a hospital, sanatorium, asylum or cure, whether for observation, examination or treatment,” she replied “No”; and in answer to the question, “What clinics, hospitals, physicians, healers or other practitioners, if any, have you consulted or been treated by, within the past five years 1 If none, so state,” she answered “No”; that these answers were untrue and false and known by the insured to be untrue and false; that the insured had been attended and examined by Dr. L. E. Barryte on December 10, 1938, and that she was a patient at the Sedgwick Dispensary of the Municipal Tuberculosis Sanitarium of Chicago, Illinois, on December 10,1938, and was there examined and placed under observation and thereafter was re-examined on January 6, 1939, at the Dispensary and a diagnosis of pulmonary tuberculosis in a far advanced stage was made; that the cause of death of the insured was pulmonary tuberculosis; that these misrepresentations by her materially affected the acceptance of the risk and the hazard assumed by defendant, which, if it had known the true facts instead of the facts represented in the application, would not have issued the policy; that the defendant company was deceived by the insured and was led to issue the policy through her fraud and misrepresentation; that for these reasons the policy was void and of no force and effect. The answer admits that the amount of premiums paid (namely, $13.70) is due and says it has been tendered and refused.

To the answer plaintiffs replied that prior to the issuance of the policy the insured and other members of her family had several insurance policies, the premiums on which were paid monthly to the agent of defendant; that in the latter part of 1938 the agent informed plaintiffs that the policy on the life of the deceased was in default and that it would be necessary to sign a new application for a new policy; that on the 30th day of December, 1938, the agent acting within the scope of his authority stated to plaintiffs it would be necessary for the deceased to sign a new application and produced such an application, which he requested her to sign; that he then stated to the plaintiffs and to the insured that he would get all the necessary data to answer the questions from the old policy; that such was the usual customary way of handling such a situation and that the insured, believing these representations to be true, signed the application in blank in two places; that all the printed questions appearing on the blank were left unanswered; that the agent asked the insured whether she had any medical care of any kind since the lapse of the last policy, that she informed him she was treated by Dr. Barryte, gave him the street number of the doctor’s office and also informed him that on December 12, 1938, and on December 14, 1938, she had been examined at the Sedgwick Dispensary; that the agent then told her that because of these facts it would be necessary for a doctor representing the defendant company to examine her; that several days later, Dr. G-. H. G-ilbreith, an agent of the defendant, appeared at the home of the insured and asked her whether she had been treated by Dr. Barryte in the early part of December and the deceased answered in the affirmative. He also asked her whether she had been treated at the Sedgwick Dispensary, and she told him that she was examined at that Dispensary on December 12 and 14,1938, and had some X-ray plates taken; that he thereupon requested permission to examine her and did examine her, stating that she would hear from the insurance company later. The replication specifically denied that the insured answered the questions as stated in the answer hut averred that in the absence of plaintiffs and the insured, and with knowledge on their part, the defendant and its two agents (knowing the facts) undertook to fill out the application and instead of stating the facts as disclosed to them, inserted conclusions of their own; that the answers which defendant set up in avoidance of the policy having been made by these agents with knowledge, the insurance company was precluded from insisting that these words of the agents and their answers were representations rendering the policy void. The replication denied that Dr. Barryte told plaintiffs or the insured that he suspected tuberculosis, admits the insured was examined at the Sedgwick Dispensary on December 12 and 14, 1938, but states the fact to be that the agents of the defendant knew of these facts at the time of the application for the insurance. It admits deceased was reexamined on January 6, 1939, but denies that either plaintiffs or the deceased were informed that any diagnosis of pulmonary tuberculosis was made and denies knowledge on the part of plaintiffs at the time the policy was delivered that the insured was afflicted with tuberculosis or that the insured knew at any time she was suffering from tuberculosis.

The defendant did not file any rejoinder to this replication. It did not aver lack of authority on the part of its agents. It did not take issue on the facts averred therein. On the issues raised by the complaint, the answer and the replication, the cause was sent to the jury. The verdict of the jury was for plaintiffs and against defendant, and it is not argued the verdict of the jury is against the evidence.

From the verdict of the jury on issues of fact and from uncontradicted evidence in the record, it appears Violet at the time of her application was about 16 years of age; that she had a prior policy obtained through the same agent, Mr. Bleeden, which had lapsed for nonpayment of premiums; that she was told it would be necessary to make out a new application; that on December 30, 1938, she signed in blank the application attached to the policy; that on January 4, 1939, she was examined by Dr. Gilbreith, the physician sent by defendant, who reported to defendant that she was in good health; that the first premium was paid January 16, 1939, and the insurance policy delivered to her father on February 1, 1939. She was admitted to the Municipal Sanitarium on September 3, 1939, and died there of pulmonary tuberculosis (or consumption) December 7 of the same year.

The answers which are said to constitute misrepresentations were not written by the insured but by the agents of the defendant company, and, as a matter of fact, Violet answered truthfully and not falsely with reference to her medical history.

The evidence of a number of doctors at the Dispensary is to the effect that on the respective dates when Violet visited the Dispensary she was infected by tuberculosis. Their evidence also showed that on several occasions afterward she and members of her family received medicines for her there. It is' not, however, claimed (and the evidence does not show) that at the time of her application Violet had been informed or knew she had the disease from which she afterwards died. On the contrary it affirmatively appears that she was not told that she had this disease and it must be admitted, in view of the verdict of the jury, that there was no actual intention on her part to defraud the defendant. Bleeden, the soliciting agent, admits that if he had filled out the answers to Part B of the application, it would not have been necessary to have an examination of Violet by the medical examiner.

The defendant’s principal contention is that the evidence to the effect that Violet truthfully informed the agents of defendant of the true facts concerning her medical history should not have been admitted and should have been stricken upon defendant’s motion. This contention is made on the theory that since the application was by provisions in the written contract made a part of the contract, and in writing, the admission of oral evidence to vary the terms of that written contract was reversible error.' On the other hand plaintiffs contend the evidence was admissible, not for the purpose of varying the terms of the contract but to show the defendant company is now es-topped to set up the defense that the policy is void because of these untrue statements. Plaintiffs also contend that having through its own physician made a thorough examination of the applicant, and the physician being informed of the true facts about the insured’s medical history, after which he reported her to be in good health, defendant waived its right to set up this defense.

The soliciting agent and the medical examiner were the agents of defendant, not the insured. Even if the policy had provided otherwise, a provision of this kind would have been invalid under the statute. Smith-Hurd’s Ann. Stats., ch. 73, par. 837 (e), p. 315 [Jones Ill. Stats. Ann. 66.900]. There are numerous well considered cases in this State holding that such evidence is admissible and may create an estoppel or a waiver. Phenix Ins. Co. v. Hart, 149 Ill. 513, 36 N. E. 990; Home Ins. Co. v. Mendenhall, 164 Ill. 458, 45 N. E. 1078; Royal Neighbors of America v. Boman, 177 Ill. 27, 52 N. E. 264; Security Trust Co. v. Tarpey, 182 Ill. 52, 54 N. E. 1041; Provident Savings Life Assur. Society v. Cannon, 201 Ill 260, 66 N. E. 388; Johnson v. Royal Neighbors, 253 Ill. 570, 97 N. E. 1084; Weisguth v. Supreme Tribe of Ben Hur, 272 Ill. 541, 112 N. E. 350, and Guter v. Security Ben. Ass’n, 335 Ill. 174, 166 N. E. 521.

In the Weisguth case the Supreme Court said: (p. 549)

“In passing upon a similar question in Provident Life Assurance Society v. Cannon, 201 Ill. 206, we said: ‘Notice to the agent at the time of the application for the insurance, of facts material to the risk is notice to the insurer, and will prevent it from insisting upon a forfeiture for causes within the knowledge of the agent. (Phenix Ins. Co. v. Hart, 149 Ill. 513; Home Ins. Co. v. Mendenhall, 164 id. 458.) Where the assured discloses facts to the agent and the agent undertakes to fill out the application, and instead of stating the facts as they are disclosed to him inserts in lieu thereof conclusions of his own, the insurance company will not be permitted to insist that the words of the agent, and not of the assured, are warranties, rendering the policy yoid. — Phenix Ins. Co. v. Stocks, 149 Ill. 319; Royal Neighbors of America v. Boman, 177 id. 27; Teutonia Life Ins. Co. v. Beck, 74 id. 165.’ ”

We understand the defendant contends that all these cases have been in effect overruled by the later decision of the Supreme Court in Western & Southern Life Ins. Co. v. Tomasun, 358 Ill. 496. Defendant misinterprets the Tomasun case. It was a case in equity to set aside . and rescind a life insurance contract obtained by the insured through actual and intentional fraudulent representations. This appears not only from the opinion filed but from a later opinion prepared by the same judge, Froehler v. North American Life Ins. Co., 374 Ill. 17.

In Joseph v. New York Life Ins. Co., 219 Ill. App. 452, this court reviewed the decisions of this and other States on the question of whether false answers made by the assured would avoid ah insurance policy, whether the assured knew they were false or not. We there said:

■“While there is some apparent conflict in the language used in the reported opinions, yet we think upon a careful analysis of each case it will be found that there is no real conflict; that the question in each case is whether the answers made by the applicant were knowingly false. Other authorities sustain this view. Donahue v. Mutual Life Ins. Co., 37 N. Dak. 203; Raer v. State Life Ins. Co., 256 Pa. 177; Oplinger v. New York Life Ins. Co., 253 Pa. 328; Sharrer v. Capital Life Ins. Co., 102 Kan. 650; Reserve Loan Life Ins. Co. v. Isom, 173 Pac. (Okla.) 841; Mutual Life Ins. Co. v. Morgan, 39 Okla. 205; Guarraia v. Metropolitan Life Ins. Co., 90 N. J. L. 682; Suravitz v. Prudential Ins. Co., 244 Pa. 582.”

On appeal to the Supreme Court the decree in that case was affirmed. Joseph v. New York Life Ins. Co., 308 Ill. 93.

In Thompson v. State Mut. Life Assur. Co. of Worchester, Mass., 305 Ill. App. 255, the opinion again reviews the Tomasun case as well as Tanner v. Prudential Ins. Co. of America, 283 Ill. App. 210, the latter case also now cited and relied on by the defend-ant. We there pointed out that the Tomasun case had been misinterpreted and reaffirmed the rule laid down in Joseph v. New York Life Ins. Co.

The later case of McMahon v. Continental Assur. Co., 308 Ill. App. 27, follows the Thompson case. If such is the rule where complaint is filed in equity to rescind the policy, much more would the rule be applicable where, after the death of the insured, a suit is brought upon the policy, as is the case here.

Defendant cites a large number of cases to the effect that the soliciting agent or medical examiner of an insurance company is without authority to waive any of the provisions of the insurance policy. Among other cases, Merchants’ Nat. Bank v. Nichols & Shepard Co., 223 Ill. 41, 49, is cited. No such issue, however, was presented by the pleadings in this case. The replication pleaded estoppel and waiver, and there was no rejoinder denying the authority of the soliciting agent or the medical examiner. Under such circumstances the issue cannot be raised in this court. Tykalowicz v. Metropolitan Life Ins. Co., 249 Ill. App. 280. We have already cited a large number of Illinois Supreme Court cases holding that such evidence is admissible in order to prove estoppel or waiver, and such is, we think, the general rule.

In Am. Jur., vol. 29, sec. 1505, page 1128, it is said:

“In the large body of cases involving waiver and estoppel as to a provision or the forfeiture of an insurance contract, the doctrines of waiver and estoppel are applied without mention of the parol evidence rule; and in the great majority of cases, the force of the objection against parol evidence does not seem to be recognized. ’ ’

In the case of Beal v. Park Fire Ins. Co., 16 Wis. 257, 82 Am. Dec. 719, a suit on a fire insurance contract, the specific question of whether oral evidence was admissible under such circumstances was discussed. The opinion states:

“The evidence of Hyer’s acts and declarations at the time the risk was taken, together with those of the renewing agent, Hatch, and also the testimony of the latter, were properly received, unless, as urged by counsel, they should have been excluded on the ground that they contradicted the written contract set forth in the policy and conditions annexed. There is little doubt that such was the effect; yet, without intending to question the rule that parol evidence is admissible to vary written instruments, we are of the opinion that the evidence was properly received. That rule is encountered by, and, we think, must yield to another rule in this case, which is, that no one should take advantage of his own mistake or wrong, to the injury of another who is innocent. The policy was issued and renewed at the solicitation of the company, without written application on the part of the insured, and upon the personal inspection and survey of the premises by its agents. There is no pretense of fraud or misrepresentation on the part of the insured, that he did anything to deceive or mislead the agents or to prevent their acquiring full knowledge of the nature and extent of the risk. . . . With this knowledge or means of knowledge, they delivered and subsequently renewed the policy, and received the premiums. If they did so intending the policy to be void, it was a gross fraud. If it was a mistake, the condition of the company is no better. ’ ’

By defendant’s given instruction No. 1 the jury were told that if they believed from the evidence any of the answers in the application were false “whether made knowlingly false or not, you should find the issues for the defendant,” and by defendant’s given instruction No. 2 the jury were told that as a matter of law any untrue statement made by the assured material to the risk in the application for policy “prevents the policy from taking effect whether said statements were made ignorantly or in good faith.” Both were wrong and should have been refused. Joseph v. New York Life Ins. Co., 219 Ill. App. 452; Minnesota Mut. Life Ins. Co. v. Link, 230 Ill. 273; Moulor v. American Life Ins. Co., 111 U. S. 335; Globe Mut. Life Ins. Ass’n v. Wagner, 188 Ill. 133; Thompson v. State Mut. Life Assur. Co. of Worcester, Mass., 305 Ill. App. 255; McMahon v. Continental Assur. Co., 308 Ill. App. 27. A number of other instructions were requested by the defendant but refused, and properly so, because they contain the same error pointed out in the two instructions given.

The judgment will be affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


text:
    Forrest L. Shaw, Appellee, v. Thomas J. Courtney et al., Defendants. Appeal of Steve Leddy et al., Appellants.
    Gen. No. 42,225.

      Opinion filed January 25, 1943.
    Thomas J. Courtney, State’s Attorney, and Jacob Shamberg, Assistant State’s Attorney, for appellants.
    Edgar Bernhard and Charles Liebman, both of Chicago, for appellee; Nathan Wolfberg and Morris H. Sachs, both of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This cause was tried on an amended complaint of two » counts filed May 13,1939. In substance the first count charged defendant Courtney and his associates and others named, each acting in behalf of himself and all the others, on May 15, 1937, assaulted and beat the plaintiff. The second count charged unlawful imprisonment (from May 15, 1937, until the 21st day of the same month). Defendants answered denying material averments and the cause was tried by jury. During the trial the cause was dismissed as to defendants Crowley and Lynch. At the close of all the evidence the court directed a verdict in favor of Courtney. The cause was submitted as to defendants Kenneally, Sponder, Leddy and O’Connor, all of the State’s Attorney’s office. A special interrogatory was submitted to the jury as to each of these, whether their conduct severally was wilful, wanton and with malicious intent. The jury answered each interrogatory in the affirmative; also returned separate verdicts of guilty against each defendant. The damages assessed were $5,000 against O’Connor, $1,500 against Kenneally, $1,500 against Sponder, and $2,000 against Leddy. The court entered judgments against each of them on the respective verdicts for a total of $10,000. Defendants appeal.

Pending his appeal O’Connor died, and leave has been given his executrix to be substituted and to adopt the briefs of her coappellants.

It is urged for reversal that the court erred in instructing the jury and in entering the several judgments in the absence of a statute authorizing an apportionment of damages against joint tort-feasors; also that the verdicts were the result of passion and prejudice.

At the time of the occurrence of the matters complained of plaintiff lived at 1500 Lunt avenue and was a securities salesman working for Matthews, Lynch & Company. O’Connor was chief clerk of the downtown office of the State’s Attorney. He was also charged with assisting in investigations made in connection with the enforcement of the Blue Sky Law.

May 15, 1937, Mr. Jerome J. Crowley, an attorney, not defendant Crowley made complaint to the office against plaintiff with reference to stocks and securities which plaintiff was said to have improperly obtained from Miss Mayne McKenny. O’Connor directed Leddy and either Kenneally or Sponder (also officers working in the Blue Sky Department) to go out and look for plaintiff. The officers went out and got Shaw and brought him in about 6:30 p. m., the same day.

There is much conflict in the evidence as to the manner in which plaintiff was treated while in charge of these officers. He testifies that he was beaten, kicked, etc. The defendants deny this and say that plaintiff stayed with them voluntarily, telling them he had a son in Northwestern University and wished to avoid publicity. It is admitted the officers who went to plaintiff’s home persuaded him to go along with them by a false story to the effect that someone at the police station claimed plaintiff’s automobile had been in a collision. Defendants deny any and all kinds of violence. It is admitted they refused for a time to let plaintiff communicate with an attorney, and the jury may well have doubted their testimony to the effect that their dealings with plaintiff were marked by gentleness and consideration. On the other hand, plaintiff probably exaggerates the alleged ill-treatment. Plaintiff was afterward indicted on matters growing out of his dealings wflth Miss McKenny. There was trial by a jury, which disagreed. He then settled by returning to her a large part of the securities he had obtained from her.

Defendants with other reasons allege the judgment should be reversed for error in several instructions. It is argued the court erred in giving an instruction as to punitive damages in part as follows:

“. . . The amount of damage, in case you find for the plaintiff and against such defendants, or any or either of them, you are to ascertain by basing your findings upon the extent of the plaintiff’s actual injuries, if any is shown by the evidence. And in case the jury believe from the evidence that the assault and false imprisonment was wanton, reckless or vicious, then the jury may add to such actual damages, if any they find, such a sum as they may believe from the evidence would be reasonable and just, as smart money or punishment.”

This instruction is, we hold, subject to criticism. In the first place it assumes the defendants (all of them) were guilty of both assault and false imprisonment, and that punitive damages might be allowed therefor. All these questions were for the jury. Collins v. Waters, 54 Ill. 485; Eshelman v. Rawalt, 298 Ill. 192. The objections to this instruction are closely connected with the further questions discussed at length in the briefs of both parties (and later noticed), namely, whether in the absence of a statute authorizing the jury may apportion damages among joint tort-feasors.

Complaint is also made of this instruction:

“It is the duty of an officer who makes an arrest without a warrant to bring the person arrested before a court within a reasonable time in order that the court may inquire into the cause of the arrest and fix bail if bail is demanded.
“You are further instructed that when an officer makes an arrest which is lawful his failure to bring the person arrested before a magistrate within a reasonable time makes the original arrest unlawful and the deten- . tion is a false imprisonment.”

We hold this instruction does not accurately state the law of this State. Page v. DePuy, 40 Ill. 506. The rule stated is only applicable and proper when applied to cases where the original arrest was made for the purpose of obtaining the means to commit a subsequent wrong. Brown v. Meier & Frank Co., 160 Ore. 608, 86 P. (2d) 79; Friesenhan v. Maines, 137 Mich. 10, 100 N. W. 172. Plaintiff cites sec. 660 of ch. 38, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 37.635] with Levin v. Costello, 214 Ill. App. 505, and 25 C. J., sec. 61, page 491. He says the evidence would have justified a finding that defendants Sponder and Leddy had such 'an intention to commit a subsequent wrong at the time of the arrest. The instruction was not limited to these two, nor did it put this issue to the jury to decide as a fact. The instruction purported to tell the jury the law it was bound to follow. We hold it erroneous. Counsel for plaintiff in their brief, after quoting the instruction and par. 660 of ch. 38, Ill. Rev. Stat. 1941, cite and discuss cases from Illinois and then conclude the point in their brief by the following: “Under any circumstances we believe that the question was properly one for the jury and that the jury was correctly instructed under the statutory and common law of this State.” The difficulty with this argument, we think, is that the instruction did not leave any question to the jury. The instruction told the jury that when an officer made an arrest which was lawful, his failure to bring the person arrested before a magistrate within a reasonable time, made the original arrest unlawful. And we think other instructions did not cure this objection — the jury was apt to be misled.

Complaint is also made that the court instructed the jury:

“If you find from the evidence under the instructions of the court that any defendant is guilty of false imprisonment in this case, then you are further instructed that the law implies malice on the part of such defendant, and you should so find.”

The Supreme Court has held in Lindquist v. Friedman’s, Inc., 366 Ill. 232: “The question of maHce is one of fact for the jury.” Plaintiff relies on Pinkerton v. Martin, 82 Ill. App. 589, where the court said that under the circumstances the law implied malice. The cases are quite distinguishable on the facts. At any rate, the word of the Supreme Court is final with this court.

Again, plaintiff refers to the conduct of Sponder, who was one of several defendants. Even if the instrnotion was justified as to him it would not have been justified as to other defendants. It was error to give it.

Defendants have raised and the parties have argued quite at length the question to which we have already alluded of whether a jury in the absence of a statute authorizing it may apportion damages among joint tort-feasors. Plaintiff concedes that prior to the enactment of the Civil Practice Act that was not permissible in this State. Livak v. Chicago & Erie Ry. Co., 299 Ill. 218. However, plaintiff cites sections 4, 24, 43(1), 44(1) and 50(1) of the Civil Practice Act [Jones Ill. Stats. Ann. 104.004, 104.024, 104.043, 104.044, 104.050] and argues that, rightly construed, section 50 authorizes the jury to so apportion damages. Plaintiff Says (rightly, we think) that he could have sued each defendant separately and obtained separate judgments (Blanchard v. Burbank, 16 Ill. App. 375; Nordhaus v. Vandalia R. Co., 242 Ill. 166) and that under the liberal provisions of the Civil Practice Act he may now sue all together. He cites Illinois Practice Act Ann., 1933, McCaskill, p. 123, and Harrow’s Illinois Practice Manual, § 50, page 179.

Section 50 of the Civil Practice Act seems to have been taken from the New Jersey statute of 1912. Defendants point out that in Tricoli v. Centalanza, 100 N. J. L. 231, 126 Atl. 214, the Supreme Court of New Jersey held in a suit of this kind:

“The court will not distribute the damages between tort-feasors, upon any theory of equitable admeasurement. ’ ’

To the same effect is Weir v. McEwan, 94 N. J. L. 92, 109 Atl. 355. Such also seems to be the.view of the English courts under the reformed procedure. See Annual Practice (1935), p. 243; Greenlands, Ltd. v. Wilmshurst (1913), 3 K. B. 507, 530, 561, C. A.; sub nom. London Association for Protection of Trade v. Greenlands, Ltd. (1916, 2 A. C. 15, 31), where it was intimated that this could not be done even by the consent of all the parties. Section 50 of our Practice Act, unlike the New Jersey statute, has this further provision : “and more than one judgment may be rendered in the same cause.” Under a somewhat similar provision of the New York Practice Act the Supreme Court of that State held in Latasa v. Aron, 59 Misc. Rep. 26, 109 N. Y. S. 744, separate verdicts might be allowed although punitive damages were given.

To the same effect are: Edquest v. Tripp & Dragstedt Co., 93 Mont. 446; McCurdy v. Hughes, 63 N. D. 435; Johnson v. Atlantic Coast Line Ry., 142 S. C. 125; Mauk v. Brundage, 68 Ohio St. 89; Louisville & N. Ry. Co. v. Both, 130 Ky. 759; Waggoner v. Wyatt, 43 Tex. Civ. App. 75.

We cannot assume the clause, “and more than one judgment may be rendered in the same cause,” to be without meaning. Professor McCaskill in the Illinois Civil Practice Act Ann., page 123, says of section 50(1):

1 The judgment provided for in section 50 extends the principle of divisible judgment that is common in equity decrees, and is appropriate, if not indispensable, where, as in this Act, provision is made for joining legal and equitable causes of action, and causes of action which have no relation to each other.
“At common law the judgment followed the verdict. Divisible verdicts were not sanctioned because they would require juries to determine the rights of parties on one side of the litigation as between themselves, and this was thought to be an undue tax upon their powers. The present Act permits more issues to be decided by a single jury within the discretion of the court when it is thought their powers will not be overtaxed, and permits a division of the issues between several juries when that is thought desirable. . . .
“This section does not alter the form of judgment that will be rendered against defendants jointly liable. The nature of such á liability gives the plaintiff a right to satisfaction against any of a group. Whatever may be their rights as between themselves, the defendants cannot deprive the plaintiff of his privilege of electing the one or ones against whom execution shall issue. Contribution, indemnity, and exoneration are matters in which the plaintiff is not interested.-”

The late Prof. Hinton, of the University of Chicago Law School, and a former judge, in discussing section 50 said: “One rather striking change that section 50 makes is in allowing a number of judgments in the same case, the ordinary common law rule being that one judgment disposed of the entire case. But where we have such separate and divers controversies as authorized under our party section, separate judgment may be the only practical way of handling the problem.” (Harrow’s Illinois Practice Manual, page 179.)

WTe agree with this interpretation of this section of the statute and think the court did not abuse its discretion in entering these several judgments on the several verdicts. We think the verdicts disclose that the jury had no difficulty in fixing the liability of each defendant, finding the defendants, whom the evidence tended to show had more to do with the claimed wrongful treatment of plaintiff, liable for a greater amount than some of the other defendants. But we think we ought to say that the evidence tending to show that plaintiff was assaulted and ill-treated, while in the custody of defendants, was overcome by the denial of the defendants and other reputable disinterested witnesses, and the verdicts which seem to sustain plaintiff’s version in this respect are against the manifest weight of the evidence.

For the errors heretofore pointed out the judgment will be reversed and the cause remanded for another trial.

Reversed and remanded.

O’Connor and McSurely, JJ., concur.