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    Noyes V. Waterman v. George E. Hall et al. Chicago Title and Trust Company et al. v. Carleton Hudson. Moody Church v. Carleton Hudson. Chicago Title and Trust Company et al., Appellants, v. Ben M. Smith and Frederick L. Fake, Appellees.
    Gen. No. 36,300.

      Opinion filed May 23, 1933.
    Cutting, Moore & Sidley, for appellants; Nathan Gr. Moore, James F. Oates, Jr., and Edward B. Hayes, of counsel.
    Ben M. Smith and Frederick L. Fake, pro se.

   Mr. Justice Sullivan

delivered the opinion of the court.

Upon the appointment of the Chicago Title & Trust Company as conservator of the estate of Arba N. Waterman, it filed a bill in equity to cancel certain deeds from Waterman to Carleton Hudson. After Waterman’s death his half brother, Noyes F. Waterman, filed a bill seeking* in part the same relief and in this case the Moody church in its cross-bill also included a prayer that Waterman’s conveyances of this real estate to Hudson be canceled. These causes were later consolidated. Later, attorneys Ben M. Smith and Frederick L. Fake (hereinafter referred to as the petitioners) were granted leave to file an intervening petition through which they sought to impress a lien on the real estate in question by virtue of a judgment they had obtained against Hudson. Subsequently and prior to a determination of the issue presented in the consolidated case the petitioners caused the sheriff to levy an execution against certain of this real estate. In the meantime the Chicago Title & Trust Company, as trustee, had conveyed this particular parcel of the real estate and the then owners, Barney Krom, Sadie Krom and Arthur Krom filed a supplemental bill in which the Moody church and the Chicago Title & Trust Company, individually and as trustee joined, seeking to enjoin the sale under the sheriff’s levy and repeating the prayer of the original bills and cross-bill that the deeds from Waterman to Hudson be canceled. A temporary order was entered enjoining the sale and the cause proceeded to trial. A decree was entered dissolving the temporary injunction, approving the validity of the deeds from Waterman to Hudson, confirming the lien of the petitioner’s judgment against Hudson on the real estate and finding that no fiduciary relationship existed between Hudson and Waterman. This appeal followed.

The following agreement "for the sale of this real estate which was not recorded until June 22, 1916, was made between Arba N. Waterman and Carleton Hudson:

“This agreement, made this 19th day of August, 1911, between Arba N. Waterman, of the City of Chicago, county of Cook and State of Illinois, party of the first part, and Carleton Hudson, of the same place, party of the second part:

“Witnesseth: That Whereas, the party of the first part is the owner, .among other property, of the following described real estate in the City of Chicago, county of Cook and State of Illinois, to-wit: (location, size and character of property follows.)

“Whereas, a large portion of the same is unimproved and produces no income, and that which is improved is not bringing a satisfactory income; and

“Whereas, the taxes and special assessments and other expenses of said real estate have been burdensome to the party of the first part; and

“Whereas, the said vacant property should be improved and the buildings on the improved property remodeled or replaced with modern apartment buildings to yield a revenue commensurate with its value; and

“Whereas, owing to the advancing age of the party of the first part it is not desirable for said party to attempt to make the improvements; and

“Whereas, said party of the second part has rendered a large amount of services in connection with said property, without compensation, and is familiar with said property; and

“Whereas, it is the desire of said party of the first part to gradually withdraw from active business and to provide for a definite income for a number of years;

“Now, Therefore, In Consideration of The Premises and the further consideration of the loaning on demand of the party of the first part of the sum of seventy-five hundred ($7500.00) dollars by the party of the second part to said party of the first part, said seventy-five hundred ($7500.00) dollars to be returned to the said party of the second part with interest at five (5%) per cent per annum, at the convenience of said party of the first part, and the further consideration of the payment within ninety (90) days from the date hereof of the sum of eleven hundred ($1100.00) Dollars by the party of the second part to the party of the first part, the said party of the first part hereby binds himself, his executors and his heirs to deed the above mentioned property to the party of the second part, by good and sufficient warranty deeds with merchantable title and abstracts of the same, at any time within five (5) years from the date hereof, at the agreed price of seventy-five ($75.00) dollars a front foot for the 12th Street frontage, seven hundred ($700.00) dollars a lot for the Crenshaw Street lots, one thousand dollars for the Homan Avenue lot, twelve thousand ($12,000.00) dollars for the Washington Boulevard and Willow Avenue corner, twelve thousand ($12,000.00) dollars for the one hundred (100) feet on Cornell Avenue between 52nd and 53rd Streets, Seventy-five ($75.00) Dollars a front foot for the sixty-three (63) feet on South Park Avenue between 60th and 61st Streets, and thirty ($30.00) dollars a front foot for the two hundred (200) feet on Indiana Avenue, and one hundred and twenty-five (125) feet on Prairie Avenue between 61st and 63rd Streets, and take in payment for the same promissory notes of the party of the second part for the full purchase price (so as to allow said party of the second part to make building loans on the property sold and transferred for the purpose of erecting buildings thereon), said notes to run for a period of ten (10) years from the date of the transfer of said property, to draw interest at the rate of five per cent (5%) per annum on the purchase price of the unimproved property, interest however, not to commence until buildings are erected and rented and provided the buildings are begun within ninety (90) days from the date of conveyance and carried on to completion with reasonable diligence, labor troubles excepted; and on the improved property when the contemplated improvements and alterations are made, provided that until new buildings are erected or alterations are made, the party of the second part shall pay to the party of the first part, quarterly, an amount equal to the income from said property, less expenses and carrying charges. The party of the first part hereby agrees to loan from any funds he may have available, to said party of the second part, on demand, the sum of thirty thousand ($30,000.00) dollars for the purpose of erecting stores and flats on the lot at the northwest corner of St. Louis Avenue and West 12th Street, the same to be secured by a first mortgage on said premises and to draw five per cent (5%) interest per annum and to run for a period of ten (10) years; and, in the event of the party of the first part having an opportunity to sell any of the above described property before transfer is made to the party of the second part, he may do so, provided the said party of the second part shall first be given an opportunity to close this agreement regarding* the purchase of said property if he desires.

“All the carrying charges of the property with interest at the rate of five per cent (5%) per annum from the date they accrue to the date of transfer of said property to said party of the second part to be added to the purchase price herein agreed on.

“It Is Further Understood And Agreed that the said party of the second part shall have the right to take any part or all of said property under this agreement. ’ ’

It appears that the loan of $7,500 provided in this agreement was never made to Waterman and that the $1,100 mentioned was not paid within 90 days nor at any time. Not only is no reference made in this contract of purchase to $30,000 owing* from Waterman to Hudson, as is hereinafter contended, but the contract provides that Hudson may borrow $35,000 from Waterman. A careful examination of this instrument discloses that it was inequitable in its terms and unenforceable against Hudson, and compels us to the conclusion that if Judge Waterman had been in the possession of his faculties he would under no circumstances have been a party to it.

Subsequently, on June 2, 1915, by six separate warranty deeds, Arba N. Waterman conveyed to Carleton Hudson all of his real estate holdings except his home. The evidence disclosed that the only consideration received by Waterman was Hudson’s unsecured notes for $81,200.

After Arba N. Waterman’s death an envelope containing Hudson’s notes was found among his effects on which he had indorsed the following notation:

“Drawing interest at five per cent per annum, for my real estate according to terms of contract of August 19th 1911.

“Gives me an income of four thousand and sixty dollars per annum.

“A. N. Waterman.”

This notation in the handwriting of Judge Waterman is unmistakable evidence that he was lulled into a feeling of security and imposed on to the extent that he believed that he was to have a definite, assured income for the rest of his life. The contract did not so provide, and if it did it would have had no binding-effect in the face of the fact that the title to the property was vested in Hudson in fee simple by Waterman’s warranty deeds. He received nothing in return except Hudson’s unsecured notes. There was nothing to prevent Hudson from selling it or mortgaging it to the hilt, as it was clear of incumbrance, and leaving Waterman with nothing to show for all his property except these notes.

About one month after the delivery of the deeds to Hudson a petition was filed July 17, 1915, in the probate court, alleging that Arba N. Waterman was a distracted and feeble-minded person, who by reason of unsoundness of mind was incapable of managing and caring for his own estate, and asking for the appointment of a conservator for his person and his estate. On the verdict of a jury the court found him to be a distracted and feeble-minded person and on December 1, 1915, appointed the Chicago Title & Trust Company as conservator of his estate. The deeds of this property to Hudson were not recorded until May 8, 1916.

May 13, 1916, the Chicago Title & Trust Company, as conservator of the estate of Arba H. Waterman, filed a bill seeking the cancellation of the deeds from Waterman to Carleton Hudson. The petitioners (together with their associates Harry C. Levinson and Leo W.. Hoffman, who afterward assigned their interest in the judgment secured against Hudson to Smith and Fake) filed an amended plea in this cause for Hudson, which was overruled and they subsequently filed his answer.

After the death of Arba H. Waterman, March 16, 1917, Hoyes F. Waterman, who was his half brother and heir, filed a bill October 25, 1917, in which he attacked the validity of the will of Arba H. Waterman under which the Moody church was the residuary devisee. This bill also sought the cancellation of the deeds from Arba H. Waterman to Hudson.

The Moody church filed a cross-bill also seeking the cancellation of these deeds, but insisting upon the validity of the will. The issue on the validity of the will was segregated and tried and the issue as to the validity of the deeds was reserved.

The averments made against the validity of the deeds in both bills of complaint and in the cross-bill of the Moody church were to the same effect, viz., that they were obtained by the defendant Carleton Hudson from the grantor, Arba H. Waterman, for an inadequate consideration, and by abuse, through fraud and undue influence of a confidential relation by which Hudson was able to dominate the enfeebled mind of Waterman.

The defendant Hudson by his counsel, Ben M. Smith and Frederick L. Fake, filed substantially the same answer to both bills; denying inadequacy of the consideration; the use of undue influence; that a fiduciary relation existed by reason of which Hudson was able to dominate Waterman; that Arba H. Waterman at the time of his death was the owner of the premises described in the various deeds and averring that Hudson was the sole owner in fee simple of the real estate in question.

Thereafter, in September, 1918, the petitioners withdrew as attorneys for Hudson in this litigation and instituted suit against him for payment for legal services rendered him in this and other causes. December 3, 1919, they recovered a judgment against him for $4,235.72. Under the statute this judgment became a lien on all real estate in Cook county to which Hudson had legal or equitable title, and whether or not this lien could be impressed on the real estate involved in the causes pending in the circuit court depended on the determination of the issue there presented as to the validity of Hudson’s title under the deeds from Arba 1ST. Waterman. The petitioners were not parties to the pending* litigation in the circuit court at this time and apparently no effort was made by any of those who were parties to expedite the trial of the consolidated cause.

January 3, 1924, the petitioners filed an intervening petition in the consolidated cause in which they alleged that Hudson had made or was about to enter into a settlement arrangement with certain parties in interest whereby for $35,000, to be paid to him or his wife, he agreed to abandon or waive his claim of title to the lands in question or consent to a decree finding that he had no title to the real estate and declaring* that the deeds from Arba 1ST. Waterman to him were void; that Arba N. Waterman was indebted to Hudson in the sum of $30,000 prior to the execution of the deeds; that this amount was part payment of the consideration for the conveyance from Waterman to Hudson, and that Hudson’s right, title and interest in the real estate amounted to at least $30,000. They asked leave of the court to intervene for the purpose of sustaining the deeds from Waterman to Hudson.

The answer of the Chicago Title & Trust Company, trustee, and the Moody church, denied that any such agreement with Hudson or his wife had been made. It developed later that such an agreement with Hudson’s wife had, in fact, been executed December 20, 1923, which was prior to the filing’ of this answer; that Hudson had filed a claim against the estate of Arba N. Waterman for $43,094.89, and that he had assigned . this claim to his wife in consideration of $1 about eight days before the entry of the judgment against him in favor of the petitioners; that Hudson’s wife in turn assigned this claim to one Dwight Dickerson, who was associated with the law firm of Cutting, Moore & Sidley, and who was acting for and in behalf of the Chicago Title & Trust Company, trustee; that in consideration of this last assignment the Chicago Title & Trust Company, trustee, agreed to pay Hudson’s wife $35,000 in full settlement of all claims of either Hudson, or his wife, against the estate of Arba N. Waterman and conditioned on her joining with Carleton Hudson in executing* a quitclaim deed to the Chicago Title & Trust Company, trustee, renouncing all claim to title, right or interest in the real estate described in the six deeds from Waterman to Hudson and involved in the pending litigation.

A further agreement was entered into between the Chicago Title & Trust Company, trustee, and Hudson’s wife, which recited that the petitioners’ judgment was in litigation and provided that $14,000 of the $35,000 settlement remain in escrow with the Chicago Title & Trust Company, and that in the event a decree was entered confirming the judgment of the petitioners against Hudson as a lien on the real estate, which was the subject matter of the litigation, the Chicago Title & Trust Company was authorized and empowered to pay the judgment out of the $14,000 held in escrow for that purpose. December 23, 1923, Hudson and his wife joined in quitclaiming the real estate in question to the Chicago Title & Trust Company, trustee, and thereupon Carleton Hudson abandoned his claim of interest and title to the said premises.

Prior to this time Noyes F. Waterman and the Moody church had compromised their differences in connection with the will of Arba N. Waterman and both of them executed deeds conveying their interest in the real estate in question to the Chicago Title & Trust Company as trustee.

In November, 1926, when the issue as to the validity of the deeds from Waterman to Hudson was still undetermined, the petitioners had issued an alias execution on their judgment against Hudson and caused the same to be levied by the sheriff on certain of the premises in question. It appears that this particular parcel of the real estate upon which the levy was made by the sheriff had been conveyed by trustee’s deed to one Schetnitz by the Chicago Title & Trust Company, trustee, for a consideration of $125,000 and conveyed by him in turn to Barney Krom, Sadie Krom and Arthur Krom, the titles in both conveyances being-guaranteed against the lien of the petitioners’ judgment by the Chicago Title & Trust Company.

The Kroms filed a supplemental bill, joined in by the Moody church and the Chicago Title & Trust Company, individually and as trustee, asking that the sheriff be enjoined from proceeding with the sale under this levy. The sale of the property by the sheriff was enjoined and the Chicago Title & Trust Company, trustee, was ordered to keep intact the $14,000 held by it in escrow under the agreement with Hudson’s wife pending the outcome of the trial and subject to the order of the court.

This consolidated cause finally went to trial May 2, 1932, on the intervening petition of attorneys Smith and Fake, and the supplemental bill of the Kroms joined in by the Moody church and the Chicago Title & Trust Company, individually and as trustee. The supplemental bill of the Kroms contained the same allegations as to the validity of the deeds from Waterman to Hudson as were theretofore contained in the original bills and cross-bills in the consolidated causes. When the case was tried the only issue remaining was whether Hudson had such right and interest in the property as would sustain the lien of the petitioners’ judgment.

The decree of the circuit court entered June 1, 1932, confirmed the lien of the judgment on certain of the real estate conveyed by Waterman to Hudson and found that the contract of August 19, 1911, entered into between Arba N. Waterman and Carleton Hudson for the sale of the Waterman real estate to Hudson was a legal and binding contract; that no fiduciary relationship was shown to have existed between the parties at the time of the signing of the contract; that pursuant to the contract Waterman executed and delivered the deeds in question June 2, 1915, to Hudson and that Hudson had legal title to the property December 3,1919, when the judgment was entered against him in favor of the petitioners, and continuously thereafter, until he conveyed the same by quitclaim deed to the Chicago Title & Trust Company, trustee, December 23, 1923.

A stipulation was entered into by the parties to this proceeding*, which was offered in evidence' on the trial and which is in part as follows:

“That no new buildings were commenced on any part of the premises mentioned in said writing (contract of August 19, 1911); that nothing was done to carry out or perform the writing until the said deeds were signed by the said Arba N. Waterman, deceased, when nothing further was done to carry out the said writing except that the said Hudson executed his certain unsecured notes; that after the death of said Waterman, said Hudson attempted to secure possession of the said premises by legal actions, which were restrained by decree of this court herein, as appears from the files and records in these consolidated causes.

“That said Arba N. Waterman had been a lawyer of high standing who had been a judge of the Circuit Court of the said County of Cook and Appellate Court of the State of Illinois for many years, but who had retired from the bench and returned to private practice about the year 1903, and made his last will and testament dated July 21, 1909, on which date he was seventy-three years of age. Prior to July 21, 1909, when his said last will and testament bears date, and since his retirement from the bench, said Arba N. Waterman had been in the practice of his profession as a lawyer, acting as counsellor and adviser of other persons in matters of business, appearing in trial and appellate courts and taking part in the trial of litigated cases, acted as executor of a will and trustee of an estate, and as a member of the board of the Chicago Public Library, and then owned the real estate described in the bills of complaint herein and his homestead, received and made payments, made and indorsed checks, made charges, kept a set of accounts, was in the entire management of his business, was dean. of a law school where he delivered courses of lectures to the students, wrote upon legal and literary subjects, and that no question whatever is or can be made of the testamentary capacity of said Arba N. Waterman on July 21, 1909; that during said period said Arba N. Waterman suffered at times from intense headaches which temporarily incapacitated him from work and his physical and mental powers then began to be undermined, and his associates and competitors in the legal profession and the judges before whom he appeared observed a decrease in his ability to prepare Ms cases for consideration and present them effectively to the court, and he was somewhat forgetful, and sometimes repeated a lecture at the law school without knowing he had given it previously, and in dictating- sometimes became confused and had to stop; that the defendant, Carleton Hudson, was thirty-years younger than said Arba 1ST. Waterman; and they were acquainted for several years prior to 1909; that said Arba N. Waterman prior to 1909 represented said Hudson in litigation against a former client of said Waterman; that some time prior to 1909 said Hudson moved into the office of said Arba N. Waterman and from that time on the relations between them were very close; that said Hudson was thenceforth in constant attendance upon said Waterman, and there was a very intimate and confidential relation between them, and said Waterman thenceforth relied upon said Hudson more and more, and in said Waterman’s office and in court and in consultation with clients of said Waterman and in arguments of cases in which said Waterman was interested said Hudson was always present; that said Waterman by the year 1909 came to depend very much upon said Hudson and did very little without consulting him and having his approval and consent, even deferring to him in the conduct of his legal business and adopting his suggestions in the arguments and proceedings of said Waterman in court; said Waterman in 1909 and thereafter and at the time of the execution of said writing (contract of August 19, 1911) and said deeds (of June 2, 1915) reposed confidence in said Carleton Hudson, who, during and at all times after said year of 1909 had thereby a dominating influence over the mind of said Arba N. Waterman; that said Hudson did not exert the influence which he had over the mind of said Waterman to induce said Waterman to make said will dated July 21, 1909, and set forth in the pleadings herein, so far as appears from any evidence heretofore presented herein to the jury on that issue; that the facts offered to said jury do not furnish a basis for the conclusion on said issue that said Hudson intended on July 21, 1909, to get said Waterman’s estate by placing the same in friendly hands by means of said will or that said will was part of such a scheme of Hudson or intended to conceal his true intentions; that the parties hereto intend to stipulate, and do stipulate to the existence of said confidential relation and said dominating influence of said Hudson over said Waterman during the periods and times aforesaid, with every proper, legitimate and lawful inference and presumption arising therefrom; but it is expressly understood that it shall be open to the said Ben M. Smith and Frederick L. Fake to contend and to make showing to the effect that said influence and dominance of said Hudson was not operative in the making of the said writing and deeds; the intent hereof is to stipulate as aforesaid and also as expressed in subsequent paragraphs hereof and without in any ivay derogating therefrom it is understood that it is not stipulated that the said confidence of said Waterman and dominance of said Hudson over the mind of said Waterman operated in connection with the said writings and deeds except as such operation thereof may be properly, lawfully or reasonably inferred, deduced or presumed from the matters herein stipulated(Italics ours.)

By reason of the renunciation and the quitclaim deed of Carleton Hudson and his abandonment of all claim to title and interest in this property, the intervening petitioners were placed in a difficult position. The burden was on them to establish the title and interest of Hudson in this property as of the date of their judgment. The lien of their judgment against this property could be impressed only if Hudson had a valid interest in and right to the property. Their claim to the lien was and could be no stronger nor no more effective than his right, title and interest in same.

The appellants contend that a fiduciary relation existed between Arba N. Waterman and Carleton Hudson and that Waterman, at the time the contract for the purchase of this real estate was made (August 19, 1911), and at the time the deeds conveying same were delivered (June 14, 1914), was enfeebled in body and distracted in mind and that Hudson took advantage of the relationship that existed between them and of the enfeebled condition of Waterman, and that the agreement for the sale of the property and the pursuant deeds conveying same for an inadequate or entirely valueless consideration were executed as a result of the domination and influence of Hudson. The appellants properly contend that once the fiduciary relationship is established the burden is on the beneficiary of any transaction had during the existence of the relationship to show that no advantage was taken.

Our Supreme Court in McCord v. Roberts, 334 Ill. 233, laid down the-following rule:

“It is next contended that the deeds were not procured by undue influence of appellant. This is not, alone, a bill to set aside deeds on the ground of undue influence or of the mental incapacity of the grantor, but on the ground that a fiduciary relationship existed, of which appellant had taken advantage to her own gain. Where a fiduciary relationship exists between a grantor and grantee in a deed the burden is upon the grantee to prove that the transaction was entirely fair in every particular. Courts of equity will scrutinize with jealous vigilance transactions between parties occupying fiduciary relations toward each other, and the burden of proof is on the beneficiary in such case to establish not only that the transaction was fair but that it did not proceed from undue influence, for the abuse of confidence or influence arising out of a fiduciary relationship will not be permitted to prevail even though the transaction could not be impeached if no confidential relation existed. Fish v. Fish, 235 Ill. 396; Dowie v. Driscoll, 203 id. 480; Thomas v. Whitney, 186 id. 225; Sands v. Sands, 112 id. 225.”

In Thomas v. Whitney, 186 Ill. 225, 231, which was cited in the previous case, the court said:

“Transactions between a party and one bearing a fiduciary relation to him are upon his motion prima facie voidable upon grounds of public policy, and the burthen of proof, the fiduciary relation being established, is upon the one receiving the benefit to show an absence of undue influence, . . . ”

This declaration of the law was followed in Fish v. Fish, 235 Ill. 396, 403, in which the court held:

“However good may have been appellant’s intention, equity will not permit one occupying a fiduciary and confidential relation to accept from an aged and infirm person of enfeebled mind a conveyance of valuable property unless the grantee clearly shows that the transaction was entirely fair and free from any improper influence. Such a transaction is prima facie voidable at the option of the grantor, upon grounds of public policy. The existence of the confidential relation creates a presumption of influence, . . . ”

This doctrine was upheld in Lerk v. McCabe, 349 Ill. 348, 361, in which the court used the following language:

“It is a settled rule in this State that transactions of parties between whom a fiduciary relation exists are prima facie voidable on grounds of public policy. They will be closely scrutinized by a court of equity, and relief will be granted unless the party claiming the benefit of the contract shows by clear and convincing proof that he has acted in perfect good faith and has not betrayed the confidence reposed in him. (Thomas v. Whitney, 186 Ill. 225; Casey v. Casey, 14 id. 112.) It is the confidential fiduciary relation existing between the parties which gives rise to such suspicion. If a reasonable suspicion exists that the confidence has been abused the contract will be set aside. (Dowie v, Driscoll, 203 Ill. 480; Beach v, Wilton, 244 id. 413.) And this though the contract is such that had no fiduciary relation existed the contract would not be disturbed. (Eichhorst v. Eichhorst, 338 Ill. 185.)”

Our courts have repeatedly held that the same doctrine applies to those informal relations which exist whenever one man places confidence in and relies upon another as in technical fiduciary relations. In Beach v. Wilton, 244 Ill. 413, 422, 423, the court held:

‘ ‘ Counsel for defendants in error argue that a fiduciary relation, under the law, does not exist unless it grows out of the relation of administrator and heir, guardian and ward, attorney and client or principal and agent. Such is not the law. In Pomeroy’s Equity Jurisprudence (vol. 2, 3d ed. sec. 956), that author, in discussing this question, says: ‘ Courts of equity have carefully refrained from defining the particular instances of fiduciary relations in such a manner that other and perhaps new cases might be excluded. It is settled by an overwhelming weight of authority that the principle extends to every possible case in which a fiduciary relation exists as a fact, in which there is confidence reposed on one side and the resulting superiority and influence on the other. The relation and the duties involved in it need not be legal. It may be moral, social, domestic or merely personal. ’ The rule as thus stated has been repeatedly quoted with approval by this court. (Roby v. Colehour, 135 Ill. 300; Thomas v. Whitney, 186 id. 225; Walker v. Shepard, 210 id. 100; Irwin v. Sample, 213 id. 160.) The fiduciary relation exists between parties where there is a relation of trust and confidence between them, — that is, where confidence is reposed by one party and the trust accepted by the other. In Mayrand v. Mayrand, 194 Ill. 45, this court said (p. 48): ‘The term fiduciary or confidential relation, as used in this connection, is a very broad one. It has been said that it exists, and that relief is granted, in all cases in which influence has been acquired and abused, — in which confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another. The only question is, does such a relation in fact exist V

Evidence was offered that tends to show the existence of a confidential relationship between Waterman and Hudson, but if that were not sufficient the following paragraph of the stipulation of facts of the parties to this proceeding is conclusive that a fiduciary relationship did exist between Waterman and Hudson at the time of the execution of the contract and the deeds for the conveyance of Waterman’s real estate to Hudson:

“Said Waterman in 1909 and thereafter and at the time of the execution of said writing (which is said contract of August 19, 1911), and said deeds (which are the deeds of June 2, 1915), reposed confidence in said Carleton Hudson who, during and at all times after said year of 1909 had thereby a dominating influence over the mind of said Arba N. Waterman.” (Italics ours.)

It follows necessarily that the intervening petitioners must shoulder the burden and show that the execution of the contract and deeds in question was not affected by the undue influence of Hudson operating on Waterman; that the consideration was adequate and that there is no suspicion of fraud as to these particular transactions. In a similar case where the adequacy of the consideration was questioned our Supreme Court held in Feeney v. Runyan, 316 Ill. 246, 250:

“He has not proved nor offered to prove the value of the property conveyed to him. He has not proved nor offered to prove that the unsecured personal notes which he gave in payment for the property were of full or any value. ’ ’

The intervening petitioners contend that in the sort of fiduciary relationship shown and stipulated in the instant case as distinguished from the technical fiduciary relationship of guardian and ward, attorney and client, and the like, the burden is on the complainants to prove that the influence or the domination of the mind of the one upon the other operated in the particular transaction to the benefit of the one and the detriment of the other. This is clearly not the law as has been shown by the cases cited and such a rule .would be subversive of the principle underlying these decisions. They also contend that while they stipulated the fiduciary relationship existed, they did not stipulate that the same operated in the particular transaction of entering into the contract of August 19, 1911. This contention is based on the following language of the stipulation:

‘ ‘ That the parties hereto intend to stipulate and do stipulate to the existence of said confidential relation and said dominating influence of said Hudson over said Waterman during the periods and times aforesaid, with every proper, legitimate and lawful inference and presumption arising therefrom; but it is expressly understood that it shall be open to the said Ben M. Smith and Frederick L. Fake to contend and to make showing to the effect that said influence and dominance of said Hudson was not operative in the making of said writing and deeds mentioned above; the intent hereof is to stipulate as aforesaid and also as expressed in subsequent paragraphs hereof and without in any way derogating therefrom it is understood that it is not stipulated that the said confidence of said Waterman and dominance of said Hudson over the mind of said Waterman operated in connection with the said writings and deeds except as such operation thereof may be properly, lawfully or reasonably inferred, deduced or presumed from the matters herein stipulated.”

The only reservation that we can discover in the' above language is their right “to contend and make showing to the effect that said influence and dominance of said Hudson was not operative in the making of the said writings and deeds mentioned above.”

The petitioners have strenuously contended, but they have failed to properly show that the execution of the contract and deeds was not influenced by the domination of Hudson and the relationship that existed, as the law says they must show. We repeat that the law will infer and presume that the confidence of Waterman and the dominance of Hudson operated in the making of the contract and deeds, once the fiduciary relationship is shown to exist, unless the facts and circumstances in evidence show otherwise.

They must maintain this burden of showing that Hudson’s transactions with Waterman during the existence of this relationship were free from suspicion and fraud and for an adequate consideration, regardless of the fact that Hudson has renounced, all interest in the property, and regardless of the fact that his abandonment rendered it practically impossible for them to establish the validity of his alleged claim of title and interest in this property. If the deeds to Hudson were invalid their lien fails and it is only by establishing by clear and convincing evidence the validity of Hudson’s claim of title and interest in the Waterman property that their lien could be rendered effective.

We have been unable to find in this record clear and convincing evidence or in fact any evidence that the fiduciary relationship did not affect this transaction, that undue influence and the domination of Hudson over Waterman were not exerted to bring about the execution of the contract and deeds and that adequate consideration was given Waterman for the conveyance of his real estate holdings. The only testimony that we can find in this record that tends to have any bearing on the adequacy of the consideration is that of petitioner Ben M. Smith that Hudson told him that Waterman was indebted to him (Hudson) to the amount of $30,000 for moneys advanced previous to the making of the contract and that that amount was part of the consideration for the execution of the contract and deeds.

Assuming that this testimony was competent, which we gravely doubt on any theory, and granting that Hudson made this statement to Ben M. Smith, the falsity of Hudson’s statement to Smith is apparent on its face, as no such item was enumerated in the contract as an element of the consideration for the execution of the deeds.

We are of the opinion that the record in this case discloses a manifest intention on the part of Hudson to defraud Judge Waterman out of his real estate, under the pretext of providing him with an assured and definite income for the rest of his life; that no adequate and in fact no valuable consideration was given Waterman in payment for his property; that no valid right, title or interest in the Waterman property was vested in Hudson at the time of the execution and delivery of the deeds purporting to convey this property to Hudson or at any time thereafter; that inasmuch as Hudson was never vested with any right, title or interest in this property the judgment of the petitioners against Hudson was not at the time of its entry or at any subsequent time a valid lien against this property, which was the property of Arba N. Waterman, and at no time did Hudson have any valid right, title or interest in this property.

Nothing that occurred since the execution and delivery of the deeds could add any strength to Hudson’s claim of title and interest. The fact that Hudson has been characterized as a scoundrel, because of his conduct before as well as after the execution of the deeds, does not alter the situation. The petitioners charge connivance, fraud and collusion on the part of those opposed to them in this case in their relations with Hudson and his wife, and that all their dealings with them were for the purpose of depriving the petitioners of the lien of their judgment against Hudson and of their only effective means of collecting the same. While the appellants,, or some of them, may have dealt with the Hudsons in a manner that would have aided the petitioners in the collection of their judgment, if they had seen fit to do so, we can conceive of no course of conduct that they might have pursued that would have lent validity to Hudson’s claim of title to this property, which was invalid in its inception.

None of their dealings militated one iota against the lien of the petitioners’ judgment. They never had a valid lien against the property because Hudson never had a valid title or interest in the property of Waterman.

It is contended that one of the considerations for the agreement to pay $35,000 to Hudson’s wife was the execution of the quitclaim deed by Hudson of his title and interest to this property to the Chicago Title & Trust Company, trustee, and that such purchase of the quitclaim deed of Hudson was an admission of Hudson’s interest in the property, and that the Chicago Title & Trust Company, trustee, was thereby estopped from contesting the validity of Hudson’s title to the property prior to the delivery of the quitclaim deed, at least to the extent of the consideration paid. They are clearly wrong in this contention and the law is well settled that a person taking a quitclaim deed to dispose of an outstanding claim of title is not estopped from denying the validity of the claim.

The evidence shows beyond peradventure that Hudson was an unscrupulous individual. Judge Waterman because of his enfeebled condition was his victim. The petitioners had their illuminating experience with Hudson. The Chicago Title & Trust Company, and its attorneys, dealt with him and his wife and whether their dealings with the Hudsons were entirely above board and free from suspicion, or whether they were the result of sound hard business judgment, we are not called upon to state in this opinion, as such dealings did not affect the only issue presented.

For the reasons stated it is our opinion that no valid interest or title was conveyed by the deeds of June 2, 1914, from Arba 1ST. Waterman to Carleton Hudson, and that at the time of the entry of the judgment of the petitioners against Carleton Hudson no valid lien attached to this property because Hudson did not own the property or any part thereof.

The decree was not sustained by the evidence or the stipulated facts and it is hereby reversed with directions to the circuit court to dismiss fhe intervening petition of Ben M. Smith and Frederick L. Fake for want of equity, to cancel the deeds from Arba N. Waterman to Carleton Hudson, and to enter a decree in conformity with the opinions expressed herein.

Reversed and remanded with directions.

Soanlan, P. J., and Gridley, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Wilson

license: Public Domain

text:
    Thomas Valuch, Appellee, v. Frederick H. Rawson, Trading as Chicago Surface Lines et al. Appeal of Frederic H. Rawson, Trading as Chicago Surface Lines et al., Appellants.
    Gen. No. 36,277.

      Opinion filed May 24, 1933.
    Weber, Miller, Dbffenbaugh & Donovan, for appellants; Frank L. Kriete and John E. Kehoe, of counsel.
    McKenna, Harris & Schneider, for appellee; James J. McKenna and Abraham W. Brussell, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Plaintiff recovered a judgment in an action in tort against the receivers of Chicago Bailways Company, Chicago City Bailway Company, Calumet & South Chicago Bailway Company and The Southern Street Bailway Company, doing business as Chicago Surface Lines and also against the City of Chicago. The action grew out of injuries sustained by the plaintiff, Thomas Valueh, on the night of September 16, 1930, while he was driving his automobile north in Crawford avenue.

It is plaintiff’s claim that at the time of the accident he, himself, was in the exercise of ordinary care, and that at a point approximately 100 feet north of Addison street and while he was proceeding in a northerly direction over Crawford avenue, the wheel of his automobile struck a hole in the pavement of the right of way of defendants Chicago Surface Lines and as a result his car was caused to swerve and come into collision with a street car operated by the defendants Chicago Surface Lines and plaintiff received injuries by reason of which it became necessary to amputate his arm.

From the evidence it appears that there were two parallel street car tracks in Crawford avenue running north and south. On the west track the Chicago Surface Lines operated its southbound cars and on the east track it operated its northbound cars. Between the two tracks was a space sufficiently wide to permit the passage of cars operated in opposite directions.

- Plaintiff testified that on the night of the accident he was driving* his automobile north on Crawford avenue and that his left front and left rear wheels were between the two rails of the northbound track; that he saw the street car coming from the north and that about 25 feet before reaching the street car which was proceeding in the opposite direction, he felt a kind of jerk and the wheels of his automobile changed their course and he was thrown against the side of the street car. He did not see a hole and remembered nothing more after the accident until probably 15 or 20 minutes later.

Plaintiff testified further that at the time of the accident he was driving between 20 and 25 miles an hour and that the left front wheel of his car struck a hole knocking the wheel out of his hand and throwing bim forward. From the evidence it appears that after the accident the car swerved and struck a garage located on the east side of the street at a point approximately 200 feet north of Addison street.

The witness Grunner testified that his place of business was about 100 fqet north of Addison street on Crawford avenue and that as he was leaving it on the night of the accident he saw a street car going south and as he got to a point about 75 feet from Addison street he saw an automobile proceeding north with its right-hand wheels about six inches west of the east rail of the northbound track. He saw the automobile swerve to the left and scrape along the street car. The automobile then swerved to the right and came directly toward him, hitting the garage within a few feet of where he was standing; that he looked into the car and saw a man slumped over the seat, apparently in a daze and that his arm was torn off; that he tied up the arm with a piece of wire and ran for a doctor. The witness testified further that there were holes in the center of the street and also in the small section of cobblestones adjacent to the track, at a point approximately 100 feet from Addison street. That this condition had existed for a period of months; that there was a hole about the size of four or five bricks in the center of the northbound car track. This witness further testified that the next morning he noticed a work car used by the surface lines, delivering material such as sand, bricks and gravel at the place where the hole was located; that he also noticed a gang working in the street car tracks at that point.

• The witness Blyth testified that he was familiar with the condition of the street at a point 75 or 150 feet north of Addison street and that on the east side of the track there was a hole from 2 to 3 feet long and probably from 12 to 14 inches in width and from 6 to 8 inches deep; that he saw the hole on the Sunday or Saturday immediately following Labor Day.

The motorman of the street car involved in the collision testified that he saw the approaching car and that it was straddling the inside rail of the northbound track; that he did not see the car vary from a straight line up to the time he passed it; that he later heard a crash and applied the air. He also testified that he examined the pavement carefully after the accident, but did not see any holes or defects in the pavement. This testimony appears to conflict with that of the witness who testified to seeing repairs being made the following morning.

Richards, a witness for defendants, testified he was a passenger on the southbound street car and was standing on the front platform the night of the accident; that he saw the automobile coming and it had apparently passed half of the street car when he heard the crash; that at the time the automobile was straddling the street car rail on the inside.

Dyra, a witness for the defendants Chicago Surface Lines, testified that he was foreman for the Chicago Surface Lines and had charge of the tracks of the defendants on Crawford avenue in the block immediately north of Addison street; that it was part of his duty to observe this track and he went over it four or five times a week; that in September he found a loos,e joint about 65 feet north of Addison street, which he repaired on September 18,1930; that he found out that this joint was loose about a month before that time; that the condition of the pavement along the break was a couple of inches low; that on the 18th of September when he mended the joint he broke out the pavement to put in a new piece of rail; that when the rail was put back the concrete was renewed and the granite blocks put back.

It is insisted that the evidence does not sustain the contention of the plaintiff that the accident was caused by reason of the hole in the pavement on the right of way of the defendants; that such evidence as there is, is conjectural and amounts only to a surmise; that the accident might have happened by reason of a blowout or some object on the street and not from a hole or depression. There is evidence in the record, however, showing that there was a hole within the rails of the Chicago Surface Lines, but there was no evidence of any foreign object upon the street which could have caused the accident. It is claimed that after the accident the automobile had a flat tire, but this may have been the result of the collision as well as from any other'cause. The automobile and the street car were traveling in- opposite directions at a fair rate of speed and if would be impossible to locate the exact point where the automobile was caused to swerve. The question as to whether or not there was a hole in the pavement upon the tracks of the defendants, which was the proximate cause of the injury, was one of fact for the jury. There is ample evidence upon the part of the plaintiff’s witnesses to sustain the verdict and we are not disposed to disturb it on that ground.

During, the course of the trial plaintiff offered in evidence an ordinance of the City of Chicago granting the use of the street to the defendants for the purpose of operating its street cars thereon. Among other provisions, the ordinance provides that the defendants should at their own expense fill, grade, pave and keep in repair that portion of the street occupied by them. Other portions of the ordinance more specifically pointed out the duty of the defendants in this regard.

The defendants Chicago Surface Lines by their counsel objected on the ground that these ordinances had to do with the relationship which existed between the companies and the City of Chicago and were not admissible for the purpose of showing any contractual relationship between the plaintiff and the defendant railway company. The plaintiff, however, did have the same right under the ordinance as had the public in general. Further that there was no common-law liability of any kind imposed upon the street car company in connection with the care and maintenance of public streets of the City of Chicago and that under the declaration the ordinances were inadmissible and incompetent.

The declaration charged that at the time and place of the accident the defendants Chicago Surface Lines were in possession and control of certain double tracks laid in said public highway, and used said tracks for their right of way, and that the defendants, Chicago Surface Lines and City of Chicago, jointly and concurrently possessed, controlled and managed said Crawford avenue at the place in question and that it became the duty of the defendants to exercise due care to keep said public highway at said point in a reasonably safe condition for travel thereon. In an action for negligence it is necessary for the plaintiff to aver and prove, first, the existence of the duty on the part of the defendant to protect the plaintiff from the injury from which he complains; second, a failure of the defendant to perform that duty; and third, an injury to the plaintiff resulting from such failure. It is not necessary to allege evidentiary facts. The same particularity in pleading is not required where issue is joined and after verdict as would be required upon the hearing of a demurrer. The Supreme Court of this State in the case of Miller v. Kresge Co., 306 Ill. 104, in its opinion, says:

“We have repeatedly held that although there is a defect, imperfection or omission in a declaration, of substance or form, which would have been a fatal objection upon a proper demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict.” (Citing cases.)

See, also, Smith v. Rutledge, 332 Ill. 150, wherein the court said:

“After judgment the rule by which pleadings before judgment are construed most strongly against the pleader is reversed and the pleading upon which the judgment is based is liberally construed for the purpose of sustaining the judgment. If the declaration filed in the cause states a cause of action, however defectively or imperfectly, and the issue joined is such as necessarily to require proof of the facts defectively stated, it is sufficient. (Plew v. Board, 274 Ill. 232; Diamond Glue Co. v. Wietzychowski, 227 id. 338.) Applying these rules, we must hold that while the declaration in this case is demurrable it is sufficient to sustain a judgment after verdict.”

Defendants’ position is based upon the proposition that the recovery in this case is predicated upon the violation of an ordinance and cite in support of their position McCrotty v. Baltimore & Ohio S. W. R. Co., 223 Ill. App. 390; Illinois Cent. R. Co. v. Godfrey, 71 Ill. 500, and other cases. A reading of these cases, however, shows that the ordinance in question was not similar to that involved in this proceeding. In those cases recovery was sought from the defendants on the ground of the failure to observe a regulatory ordinance. The ordinance in question in the case at bar is in the nature of a contract between the city and the street car company, under which the street car company undertook to perform certain duties in consideration of the franchise or rights granted to it, namely, to operate cars over and along certain streets in the City of Chicago, and particularly the street in question. Proof of this ordinance was admissible in evidence for the purpose of sustaining the allegation that it was the duty of the street railway company to keep the street in repair between the rails of its tracks. If the company was operating street cars in the city streets, it was under the common-law obligation to keep its rails in a proper and suitable condition, and we believe this could properly be extended so as to include that portion of the street between the rails- over which the cars ran. The court had occasion to consider this question in the case of Chicago Union Traction Co. v. Fitzgerald, 138 Ill. App. 520, and in its opinion the court said :

“We" think that the averment that the defendant permitted a hole to remain Svithin the rails’ of the south track is not an averment that such hole was within or between the flanges,-but is an averment that such hole was within or between the rails proper, and that proof thát a part of the flange of said south rail was broken off' at its junction with the web of the rail proper and was gone, leaving a hole where the flange was when in place, was proof of the averment of the declaration. Under the general principles of law, independent of any ordinance, appellant was bound to use reasonable care to keep the flanges reasonably safe for vehicles to pass along* and over.”

In the case of Commonwealth v. Newton Township, 276 Pa. 172, the court in its opinion, said: “Under common law principles, a street railway company is required to maintain and repair the portion of the highway occupied by its facilities; Chambersburg Borough v. Chambersburg, etc., Co., 258 Pa. 57, 60. ‘When the state gives up a portion of one of its highways to particular use, without providing that what had been the duty of the municipality as to it shall continue, such duty devolves upon the party acquiring the right to use it, and a street railway company, given the right to use such portion of a street as is needed for its tracks, in taking charge of it, is charged with the duty of properly maintaining it.’ ”

In the case of Law v. City of St. Louis, 292 Mo. 385, the court in its opinion lays down the following rule: “The occupancy of the street by the United Railways Company created a special right or interest therein in favor of said company, which right must not be allowed to interfere with the safe use by the public. The primary duty of keeping in repair the part thus occupied is cast upon the United Railways Company, and a different rule of liability exists than that of an abutting owner. Such liability and duty to repair exists at common law, and an action can be maintained by a third party injured directly against such railway. St. Joseph v. Railroad, 116 Mo. 636; Independence v. Mo. Pac. Ry., 86 Mo. App. 585; Jenre v. Railroad, 86 Kan. 479; Brooklyn v. City Ry. Co., 47 N. Y. 475; St. Paul Water Co. v. Ware, 16 Wall, 566.”

The case of San Antonio Traction Co. v. Cassanova (Tex. Civ. App.), 154 S. W. 1190, follows the same rule and in its opinion, says:

“It is the duty of a street railway company to use reasonable care and diligence to keep its roadbed in repair so as not to obstruct travel across or along the same, whether such duty is enjoined by legislative act or stipulated in the charter, or in an ordinance, or not. The duty arises from the use of the street by the railway company. Railway v. Medlenka, 17 Tex. Civ. App. 621, 43 S. W. 1028; Laredo Electric Railway v. Hamilton, 23 Tex. Civ. App. 480, 56 S. W. 988. It was a matter of defense to show that the defect was not known to appellant, if such want of knowledge be a defense, as we do not think it is. A prima facie case was made when-it was shown that the obstruction was in the street.” '

, See also South Covington & Cincinnati St. Ry. Co. v. Wintermeyer, 182 Ky. 94. The rule is recognized in our own Supreme Court in the case of Fowler v. Chicago Railways Co., 285 Ill. 196. This was an action against a street railway company for damages sustained by the next of kin of one Allen, who was killed by reason of a defect in a street in the City of Chicago. At the time of the accident, plaintiff’s intestate was driving in ITalsted street and the wheels of his wagon dropped in a hole or depression of the pavement between the rails of the street car company operating upon the street. In that case it was insisted, as here, that there was no obligation between the street railway company and the plaintiff under which the street railway company was required to keep that portion of the street which it used in repair. The court, however, took the position that the street railway company occupied the character of a tenant in possession and was liable unless exempted by express agreement with the landlord. We cite at length from this opinion because it is illuminating and instructive:

“Plaintiff in error first contends that the circuit court erred in refusing to instruct the jury to find it not guilty, because its obligation, if any, to repair that portion of the street where the injury occurred arose merely from its contract with the city, and did not render it liable in a direct suit by the person injured by reason of the failure of the plaintiff in error to keep that portion of the street in repair. While this exact question has not been heretofore presented to this court for decision, the principle involved has been recognized in cases involving the question whether a suit can be brought directly against a landlord by reason of the fact that he has by contract agreed with the tenant to keep the demised premises in repair. Thus, in Gridley v. City of Bloomington, 68 Ill. 47, it was said: ‘The general rule is, that the occupant, and not the owner as such, is responsible for injuries received in consequence of a failure to keep the premises occupied in repair. (Citing authorities.) To this rule the authorities recognize these exceptions: (1) Where the landlord has, by an express agreement between the tenant and himself, agreed to keep the premises in repair, so that in case of a recovery against the tenant he would have his remedy over; then, to avoid circuity of action, the party injured by the defect and want of repair may have his action, in the first instance, against the landlord, ’ etc. To the same effect are Boyce v. Tallerman, 183 Ill. 115, and West Chicago Masonic Ass’n v. Cohn, 192 id. 210. Upon the same line of reasoning, while the duty to keep the streets of a city in repair is imposed by law upon the city, where a street railway, in consideration of a license to construct and operate its road on a public street, has agreed with the city to keep the street in repair, any person sustaining-damage by reason of the failure of the street railway to keep the street in repair may, in order to avoid circuity of action, maintain a suit directly against the street railway for the damages occasioned thereby; and such is the holding in other jurisdictions where the question has been presented.”

Under the analogy in the foregoing* opinion in an action against a tenant in possession, it would not be necessary to charge and allege in the declaration all the facts under which the tenant came into possession of the premises, but these facts are such evidentiary facts as could be introduced in evidence in order to support the charge in the declaration that the tenant was in possession. In addition to the ordinance introduced in evidence there were facts from which the jury could have reached the conclusion that the street car company was in control of the premises in question.

The witness Dyra testified that he was the section foreman for the Chicago Surface Lines and that it was his duty to pass over the tracks and observe the condition and to make repairs when necessary and to remove the concrete and place the blocks back in the pavement when repairs were made. Moreover, there is testimony to the effect that the defendant did, in fact, make repairs immediately after the accident. •

In addition to the rule laid down in the authorities cited, there is considerable force in the argument advanced by the plaintiff that the court should take judicial notice of the fact that in the City of Chicago all street railway lines are obligated to repair and keep in a proper and suitable condition that portion of the rails as well as a short distance of the pavement immediately adjacent to the outside rails or tracks. In order that a court may take judicial notice of any fact it must appear that it is a matter of common and general knowledge and that it must be well established and known within the limits of the jurisdiction of the court. It may well be said that the-ordinance regulating the use of the streets by street railway companies in the City of Chicago is one generally known. The courts of this jurisdiction have had frequent occasion to pass upon these ordinances and the decisions with reference thereto are numerous. The ordinance itself, under which the street car companies are operating, was submitted to the vote of the people and it may be assumed that the public in order to vote intelligently thereon familiarized itself with the terms of the ordinance.

The Chicago Surface Lines have taken the position that it was the duty of the plaintiff to have introduced the entire ordinance. With this we cannot agree, as it is evident that if there was anything of importance contained in said ordinance which the defendants desired submitted to the jury it could have easily been offered by the defendants.

Under the view we take of the matter, the allegation that the defendants, receivers of the Chicago Surface Lines, were in control of and obligated to keep in repair that portion of the street where the accident happened, was a sufficient allegation particularly after verdict to sustain the judgment.

While the plaintiff’s witness Grunner was upon the stand, he was handed a statement and asked whether or not it had been signed by him and his answer was in the affirmative. This was while plaintiff was putting in his case in chief. This statement was not introduced in evidence and after both sides had rested and before the argument to the jury began the defendants asked leave to introduce the document in evidence. The trial court held that the offer came too late. Whether or not the document was received in evidence at this stage of the proceeding was one resting within the sound discretion of the trial court. It appears the witness Gruniier was no longer, in court and could not have been examined by plaintiff’s counsel concerning it, and we are not prepared to say that the ruling of the trial court in this regard was an abuse of its discretion.

It is urged as ground for reversal that evidence was admitted as to the profits derived by plaintiff from the business in which he was engaged. We find, however, that the objection to this line of examination was on the ground that there had not been a sufficient foundation laid upon which such profits could be predicated. This objection did not question the competency of the testimony and on cross-examination the witness was fully examined on this question. We do not believe that there was such error as would justify a reversal of this cause for the reasons stated.

We have examined the instructions and find no reversible error in the giving or refusing of any such instructions.

The judgment was for $15,000 for the loss of an arm and we do not consider this excessive. The judgment is against both the City of Chicago and the Chicago Surface Lines. There is no separate brief filed on behalf of the City of Chicago nor any reason advanced as to why the judgment would not be good as to this defendant. Moreover, the city is primarily liable and this court is not concerned with any arrangement between the City of Chicago and the Chicago Surface Lines with reference to the satisfaction of the judgment.

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

Judgment affirmed.

Hebel and Hall, JJ., concur.


text:
    Rockwell Lime Company, Complainant, v. Elizabeth C. Schlegel et al., Defendants. A. J. Horn, Appellee, v. Frank G. Ockerlund and Algot Berg, Appellants.
    Gen. No. 36,329.

      Opinion filed May 24, 1933.
    Benson, Fitch & Heinemann, for appellants.
    Max M. and Samuel Grossman, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This was an appeal from an order entered in the circuit court in which, on the petition of a lessee of the premises, the court ordered the receiver to reduce the rent from $1,000 per month to $750 per month for a period of six months. The original bill was one to foreclose a mechanic’s lien. A receiver was appointed and an order entered authorizing the receiver to issue $30,000 worth of receiver’s certificates to complete the building. Thereafter the receiver secured an order from the court authorizing him to accept a proposal of Horn, the contractor, under which Horn was to complete the building, and in consideration therefor was to accept the certificates. At the same time, the receiver gave Horn a lease on the building at a rental of $1,000 per month. Subsequently, Horn filed a petition asking for a reduction of the rent of the premises in question.

The petition was heard after notice given. All parties were in court and the matter fully argued and presented. The petition was under oath and after the hearing the court announced that it would grant the prayer for the reduction in rent. After the hearing and the announcement of the court, the intervening petitioners, Oclcerlund and- Berg, asked for leave to answer the petition, which was denied. The motion for leave to answer after the hearing came too late.

It is insisted that the order disposed of the rights of the parties to six months’ rent and was, therefore, appealable. With this position we are unable to agree. The motion was for a reduction of rent in the future and the estate was, therefore, not deprived of any assets. The question was one of administration and came within the sound discretion of the court. Such matters are not subject to review.

In the case of Mercantile Trust Co. v. Farmers’ Loan & Trust Co., 81 Fed. 254, the court in its opinion said:

‘ ‘ 1. The issue in the court below presented a question of business policy, and not a.question of law. The decision and order of the court were administrative, rather than judicial. That court and its receivers were not liable for the debts nor bound by the obligations of the mortgagor when they took possession of its property. The receivers, under the direction of the court, had the option to assume or to renounce the leases of the branch roads, which they found in the possession of the mortgagor, within a reasonable time after their appointment. Ames v. Railway Co., 60 Fed. 966, 970, 971, and cases there cited. In due time, they recommended the renunciation of these leases, and asked permission to execute it; but the master, after a full hearing upon the facts and the law, recommended their assumption. Thfe question before the master and the court was, which course would be of greater advantage to the trust estate! This was a question of business policy, upon which the minds of reasonable men might well differ. None of the parties in interest had the absolute legal right to a determination of this question in either way. The appellant, by bringing its bill in the court below, had imposed upon that court the duty of deciding which course would be of greater benefit to the trust estate confided to the receivers. It decided that the assumption of the leases would be. One who invokes the aid of a chancellor to operate railroads, and to control and conduct vast business operations, on his behalf, ought not to be permitted to reverse the administrative orders of the court for mere mistakes of business judgment. Administrative orders, which involve mere questions of business policy in the conduct of a receivership, are largely discretionary, and should not be disturbed by an appellate court, in the absence of any abuse of the discretion of the chancellor. Since there was no abuse, but the most careful and deliberate exercise, of its discretion by the court below, we think the order appealed from should not be disturbed.”

We concur in the reasoning of the case from which we have quoted, and for the reasons stated the order of the circuit court is affirmed.

Order affirmed.

Hebel and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    Arthur L. Whitely (Plaintiff), Appellee, v. Charles H. Bartlett et al. (Defendants). Appeal of Charles H. Bartlett et al., Appellants.
    Gen. No. 36,059.
    Opinion filed May 24, 1933.
    Erwin F. Stolle, for appellants; Milford H. Olds, of counsel.

      Culver, Andrews, Seiter & Gtlmore, for appellee; Orville E. Seiter, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

By this appeal Charles H. Bartlett, Walter Deemer and L. Percy Owen, defendants, seek the reversal of a judgment against themselves and Leslie Gr. Arries, in a suit on a promissory note given by all the defendants and payable to plaintiff. Arries defaulted. The judgment is upon the verdict of a jury.

To the declaration filed in the case, the defendants appealing filed pleas of non assumpsit and of payment and an affidavit of merits, in which it is alleged that the money obtained from plaintiff on the note sued on was loaned by plaintiff to Leslie Gr. Arries; that Arries, without instruction or authority from the other defendants and signers of the note, and without their knowledge, took a note which was signed by them in blank, filled in the blanks, including the name of plaintiff and the amount of the note, delivered it to plaintiff, and received from plaintiff the amount of the note. In the affidavit of merits these defendants appealing further allege that Arries appropriated such funds to his own use. The affidavit further recites that thereafter Arries gave the plaintiff his individual check in payment of the note in question, received the note back from plaintiff marked “cancelled” with the signatures torn therefrom, and that the note was destroyed.

The testimony of the plaintiff is to the effect that about July 20, 1929, Leslie Gr. Arries, one of the defendants, presented to plaintiff a note signed by all the defendants for the sum of $2,500; that he, plaintiff, knew Bartlett fairly well and Deemer slightly; that at the time the note was first presented to plaintiff it contained no payee’s name, no place of payment, and no date; that Arries requested plaintiff to advance $2,500 on the note; that plaintiff told Arries that he would consider the matter; that a few days thereafter Arries returned to plaintiff with the blanks in the note filled out, making the note payable to plaintiff, and • received from plaintiff a check for the sum of $2,500 payable to Leslie Gr. Arries, which check was paid through the Chicago Clearing House; that subsequently about the middle of September, 1929, Arries gave plaintiff a check of the Midland Direct Advertising Service, by Leslie Gr. Arries, President, drawn on the National Bank of the Republic; that plaintiff thereupon delivered the note in question to Arries with the signatures thereon intact and as plaintiff had received it from Arries and that the check given to plaintiff by Arries was presented to the National Bank of the Republic and returned by the bank to plaintiff unpaid and marked “account closed.”

Plaintiff further testified that subsequent to advancing the money on the note as above set forth and before Arries had given the worthless check in payment thereof, plaintiff had a conversation with defendant Bartlett, who was then mayor of the City of Evanston, and that Bartlett had inquired of plaintiff in substance whether or not plaintiff had the note in question in his, plaintiff’s, possession; that Bartlett at this time stated to plaintiff that those who had to do with the Midland Direct Advertising Service were about to have a meeting with a view to settling its affairs, including the note in question, and that plaintiff should take the note to the office of the Midland Direct Advertising Service and that Arries would “settle it.” Plaintiff did as he was directed by Bartlett, and Arries gave plaintiff the check which was not paid and was returned to plaintiff by the bank marked “account closed.” Plaintiff further testified that after the Arries check was returned to him, he again saw defendant Bartlett, and that Bartlett then informed plaintiff that Arries had given other checks on the bank, had overdrawn the company’s account, and for this reason the company’s account had been closed.- Plaintiff then informed Bartlett that he, plaintiff, intended to and would look to the signers of the note for its payment, and that Bartlett had stated to plaintiff that if plaintiff would take $1,000 in cash and a note for $1,500, the note in question would be taken up. This is not denied by either defendant, and it is not in evidence that either at this time or at any time before the suit was started, did Bartlett or Deemer deny liability on this note.

Before the trial, plaintiff gave defendant notice to produce the note in question which had been delivered to Arries at the time the plaintiff received the bad check in payment thereof. The note was not produced and there was offered in evidence and admitted by the ‘ court what purported to be a copy of such note.

• Bartlett testified that he first saw the original of the note sued on in July, 1929, and at that time the note was blank, except for the signatures of the makers; that he then signed it and did not see it again until it was brought into his office in pieces with the signatures torn off and marked ‘1 Cancelled, Arthur L. Whitely. ’ ’ Bartlett further testified that his object in signing the note was for the purpose of borrowing money on it for the Midland Direct Advertising Service, and that Deemer, one of the defendants and a director in such company, was authorized to take it and get some money. Bartlett also testified that he was interested in the Midland Direct Advertising Service, that. Arries was president of such company and Deemer a director, and that he, Bartlett, signed the note with the other defendants. Deemer also testified that he signed the note in question for the purpose of raising money for the Midland Direct Advertising Service. Owen did not testify.

The evidence is that after the note was signed, it was placed in a receptacle to which Arries, the president of the corporation, in common with the other officials of the company, had access. It cannot be presumed that these people executed this note for the purpose stated, with no intention that the blanks should be filled when occasion demanded it. On the contrary, this court must presume that the makers intended that the blanks would be filled in when necessary to carry out the purpose for which the note was signed.

After the issues were joined, the case called for trial, a jury accepted and considerable testimony heard, defendants moved the court for leave to file additional pleas denying the execution and delivery of the note in question, which motion was denied. The pleas and affidavit of merits filed in the case set forth fully the circumstances concerning the making and delivery of the note. The court did not limit defendants in their offers of proof on this phase of the case, so that there was no error committed in this regard.

In Adair v. First Nat. Bank of Belvidere, 253 Ill. App. 206, a number of notes were executed by various persons to be used in procuring a fund to build an electric railroad. The name of the payee was left blank and was filled in by the bank which cashed the notes with the name of the bank, payee. The same question in effect was raised in that case as is raised here, and the court said, page 213:

“The evidence discloses that when said original notes were signed, the name of the payee was left blank for the sole reason that the makers thereof did not know where they would be able to negotiate the same. Under the Negotiable Instruments Act, the bank, having purchased said notes for valuable consideration, had authority to fill in its name as payee. Cahill’s St. ch. 98, ¶ 34; Young v. Ward, 21 Ill. 223-225; Weston v. Myers, 33 Ill. 424-432; Merritt v. Boyden, 191 Ill. 136-146; Kramer v. Schnitzer, 268 Ill. 603-606; Leseure v. Weaver, 99 Ill. App. 375-380.”

In Business Men’s League v. Sragow, 153 N. Y. S. 231, a note was executed with the date, maturity and name of payee blank. It was intrusted by the maker to a third party, who in turn sold the note. The question arose as to the right of the purchaser to fill in the name in the blanks, and the court said, page 232: “It is well settled that the delivery of a note or draft in blank carries with it the implied authority to the person to whom it is delivered to fill it in and negotiate it, upon which third persons taking the instrument have a right to rely, and the fact that it is filled in in their presence does not put them on inquiry as to the terms of the authority. Chemung Canan Bank v. Bradner, 44 N. Y. 680; Weyerhauser v. Dun, 100 N. Y. 150, 2 N. E. 274.”

In Sherman State Bank v. Smith, 244 Ill. App. 171, the owner of a note and mortgage (upon what was afterwards alleged to have been a false representation) delivered them indorsed in blank, to a real estate dealer with whom the owner had had business relations. The real estate agent sold the note and mortgage to a bank. The mortgagor defaulted and the bank filed a bill to foreclose. The owner filed a cross-bill setting up title. The court held the title to be in the bank, and said, page 174:

“It appears from the record that one of the theories advanced by Mrs. Lane on the trial was that Kowalewski, in obtaining possession of the principal note, coupons and trust deed, under the circumstances disclosed by the record, was guilty of larceny, and, therefore, obtained no title to the notes and trust deed and could not give any to the Sherman State Bank, even though it were a holder for value without notice, and this theory seems to have been adopted by the learned chancellor. The law has long been firmly established that an innocent holder for value of negotiable paper, endorsed in blank before maturity, is protected although the one from whom he received the note may have stolen it from the true owner. The general rule of law is that no one can give a better title to personal property than he has himself. But to favor commerce the law makes an exception to this rule as to negotiable paper and money. It is founded upon principles of commercial policy; Mann v. Merchants’ Loan & Trust Co., 100 Ill. App. 224; Shipley v. Carroll, 45 Ill. 285; Murray v. Lardner, 2 Wall. (69 U. S.) 110; Shaw v. Merchants’ Nat. Bank of St. Louis, 101 U. S. 557; Tucker v. Bank, 58 N. H. 83; Saltus & Saltus v. Everett, 20 Wend. (N. Y.) 267; Wheeler v. Guild, 20 Pick (37 Mass.) 545; Voss v. Chamberlain, 139 Iowa 569, 117 N. W. 269, 19 L. R. A. (N. S.) 106. See also section 52 of our Negotiable Instruments Act, Cahill’s St. ch. 98, If 72. In the instant case, even if Bruno F. Kowalewski were guilty of larceny in obtaining the note and trust deed from Mrs. Lane, yet, if the Sherman State Bank was a bona fide owner for value without notice, it would obtain good title to the note. The only exceptions to this rule of law are where fraud or circumvention has been used in obtaining the execution of a negotiable instrument, Cahill’s St. 1925, ch. 98, If 11, or if such negotiable instrument was given in a gaming transaction. Cahill’s St. 1925, ch. 98, ff 78. Neither of these exceptions are involved in the instant case.”

In Toledo, Wabash & Western Ry. Co. v. Gilvin, 81 Ill. 511, page 517, the Supreme Court said:

“When one of two innocent persons must suffer by the knavery of, a third, the party who trusted the knave must be the sufferer.”

In the case at bar, however, as between plaintiff and these defendants, in so far as the question of the possession or the right of possession is concerned, Arries cannot be said to have acquired such possession by any other than legal means. As has already been said, he was the president of the company and had access to its papers and documents. The note was not the private property of the makers, but was executed by them for the purpose of procuring a loan for the company, and the situation is not parallel to a case where possession of a negotiable instrument is obtained by theft or fraud, even if it is to be understood that either is here set up as a defense. As between Arries and his associates, he may have been guilty of bad faith, or worse, but if this be true, his conduct has no bearing upon the question before this court. The fact that this officer of the corporation may have misappropriated the proceeds of the note, if he did, is no concern of plaintiff.

We have examined the instructions of plaintiff and defendants, given and refused, and the criticism by this court of both is that there was a plethora of instructions, given and refused, by each side. The plaintiff offered 32, 20 of which were given and 12 refused. The defendant offered 30, 10 of which were given and 20 refused. The questions of fact and law in the case are neither numerous nor complex, and, therefore, the giving of many instructions containing abstruse propositions of law which merely tended to confuse the jury was improper and a practice to be condemned. However, we find nothing in the giving or refusing of instructions which would justify a reversal of the judgment. The jury saw and heard the witnesses, as did the court, the issues were fully submitted, and fairly presented, and we see no reason for disturbing the verdict and judgment. Therefore, the judgment of the superior court is affirmed.

Affirmed.

Wilsoh, P. J., and Hebel, J., concur.


author: Mr. Presiding Justice MeSurely

text:
    First District.
    Petri Valauskis, appellee, v. The Crane and Moreland Real Estate Improvement Company et al., defendants, on appeal of Stock Yards Trust & Savings Bank et al., appellants.
    Gen. No. 36,629.
    Opinion filed March 22, 1933.
    Kirkland, Fleming, Green & Martin, for appellants; Carl Lloyd and William Wilson, of counsel. Pines, Morse & Stein and John B. Borden, for appellee; Clarence T. Morse, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Philip Popovich, appellee, v. Atlantic & Pacific Stages, Inc. William J. Popper, appellant.
    Gen. No. 36,567.
    Opinion filed March 22, 1933.
    William J. Popper, for appellant. Earl J. Walker, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Josephine Mahnke, defendant in error, v. Viola Nowicki, intervening petitioner, plaintiff in error.
    Gen. No. 36,617.
    Opinion filed March 22, 1933.
    P. T. Harrington, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Standard Encyclopedia Corporation, appellant, v. Alma Thompson Leaverton, appellee.
    Gen. No. 36,081.
    Opinion filed March 29, 1933.
    Freyburger, Baker & Rice, for appellant. John W. Golosinee and Irving Goodman, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Chicago Title & Trust Company, appellee, v. Joseph B. Drell, appellant.
    Gen. No. 36,093.
    Opinion filed March 29, 1933.
    Slottow & Levitón, for appellant; David PaJey, of counsel. Holland F. Fla Havhan, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    May Rinella, appellant, v. Elsie Halvorsen, appellee.
    Gen. No. 36,111.
    Opinion filed March 29, 1933.
    Joseph W. Cox, for appellant. William McKinley and Paul E. Price, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


author: Mr.-Presiding Justice Wilson

text:
    Mildred A. Davies, appellee, v. Marks Bros. Theatres, Inc., appellant.
    Gen. No. 36,120.
    Opinion filed March 29, 1933.
    Rehearing denied April 13, 1933.
    John A. Bloomingston, for appellant. Abraham Lepine, for appellee; Alvin E. Stein, of counsel.
   Mr.-Presiding Justice Wilson

delivered the opinion of the court.


text:
    National Tea Company, appellee, v. Elgin, Joliet and Eastern Railway Company, appellant.
    Gen. No. 36,217.

      Opinion filed March 29, 1933.
    Knapp, Beye, Allen, Cochran & Cushing, for appellant; Joseph L. Barlywine and Paul R. Conaghan, of counsel. Soelke, Koehn & Loewy, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Providence Institution for Savings, appellee, v. Mildred J. Davidson et al., appellants.
    Gen. No. 36,611.
    Opinion filed March 29, 1933.
    Rehearing denied April 13, 1933.
    Rubenstein & Beelcer, for appellants; Harry Becker, of counsel. Scott, MaeLeish & Falk, for appellee; Walter S. Underwood, George W. Swain, Harold D. Burgess and John F. McCarthy, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Helen M. Lott (Williams) et al., appellees, v. Lott Hotels, Inc., and Fidelity and Casualty Company of New York, appellants.
    Gen. No. 35,893.
    Opinion filed March 29, 1933.
    Rehearing denied April 13, 1933.
    Harris F. Williams, H. L. Howard and William Greene, for appellants; Tj. A. Wheeler and Robert C. Baumgartner, of counsel. Socrates & Davis and Louis L. Cohen, for appellees; Nicholas A. Socrates, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Bernice Kaplan, administratrix of the estate of Abe Kaplan, deceased, appellant, v. Gust Demos, appellee.
    Gen. No. 35,903.
    Opinion filed March 29, 1933.
    Rehearing denied April 13, 1933.
    Morris H. Cohen, for appellant. Cummings & Wyman, for appellee; Daniel P. Nagle, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. Samuel Glaubach, appellant.
    Gen. No. 35,922.
    Opinion filed March 29, 1933.
    Michael B. Roderick, for appellant. No appearance for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Hazel Whittaker, appellee, v. Central Trust Company of Illinois, and Etta Surkin, appellant.
    Gen. No. 35,931.
    Opinion filed March 29, 1933.
    John A. Bloomingston, for appellant. -Sampson & Sampson and Henry O. Ferguson, for appellee; Henry C. Ferguson, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. Samuel Glaubach, appellant.
    Gen. No. 35,952.
    Opinion filed March 29, 1933.
    Michael B. Roderick, for appellant. No appearance for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    The Prudential Insurance Company of America, appellee, v. Samuel J. Richman et al., defendants, on appeal of Daniel G. Marks and Bessie Richman, appellants.
    Gen. No. 36,484.
    Opinion filed March 29, 1933.
    Emanuel Eller and Samuel J. Riehman, for appellants. Hoyne, 0 ’Connor & Rubinkam, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    Louis Solomon, administrator of the estate of Paul Solomon, deceased, appellant, v. George W. Wead and the Woodlawn Trust & Savings Bank, trustee, impleaded with H. M. Marsh, appellees.
    Gen. No. 35,117.
    Opinion filed March 29, 1933.
    Estelle M. Wells and Elizabeth Buehhalter, for appellant. Lang-worthy, Stevens, McKeag & MeCornaek, for appellees; James McKeag, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    D. M. Kable, appellant, v. Cameron Can Machinery Company, appellee.
    Gen. No. 35,890.

      Opinion filed March 29, 1933.
    Saltiel & Saltiel, for appellant. J. S. Dudley, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Hahnemann Institutions of Chicago, Inc., for the use of First National Bank of Palatine, appellee, v. Central Republic Bank and Trust Company, successor by consolidation to Central Trust Company of Illinois, appellant.
    Gen. No. 35,909.
    Opinion filed March 29, 1933.
    Rehearing denied April 13, 1933.
    Fisher, Boyden, Bell, Boyd & Marshall, for appellant; Earl K. Schiele, of counsel. William Annan Taylor, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Edward E. Novak, appellant, v. Peter W. Hansen, appellee.
    Gen. No. 35,919.
    Opinion filed March 29, 1933.
    Novak & Turek, for appellant. No appearance for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    David B. Franz, appellee, v. Canton Rolling Mill Corporation et al., defendants, on appeal of Godfrey Cohn et al., appellants.
    Gen. No. 35,937.
    Opinion filed March 29, 1933.
    Rehearing denied' April 13, 1933.
    Lowenhaupt & Wolff, for appellant Godfrey Cohn. Schwartz & Nafshun, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr, Justice Hebei

text:
    William Fetzer, defendant in error, v. South Santa Fe Land & Development Company, plaintiff in error.
    Gen. No. 36,001.
    Opinion filed March 29, 1933.
    Rehearing denied April 13, 1933.
    Johan Waage, for plaintiff in error. Simon T. Sutton, for defendant in error.
   Mr, Justice Hebei

delivered the opinion of the court.


text:
    Seymour Products Company, appellee, v. Wilson-Western Sporting Goods Company, appellant.
    Gen. No. 36,038.
    Opinion filed March 29, 1933.
    Rehearing denied April 13, 1933.
    James D. Cooney, Paul Ware and Thomas Freeman, Jr., for appellant. Jacobson, Merrick, Nierman & Silbert, for appellee; David Silbert and Joseph L. Herr, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Julius B. Ginsberg, appellee, v. Benjamin I. Morris and David Labowitch, appellants.
    Gen. No. 36,056.
    Opinion filed March 29, 1933.
    Benjamin I. Morris, for appellants. Henry H. Koven, for appellee; Henry W. Kenoe, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    The People of the State of Illinois, defendant in error, v. Lionel A. Sherwin, plaintiff in error. In re Commitment of Lionel A. Sherwin, plaintiff in error, for direct contempt of court in the case of Chicago Title & Trust Co., Trustee, v. Sam Rubin et al., Circuit Court of Cook County, No. B224973.
    Gen. No. 36,231.
    Opinion filed April 10, 1933.
    Rehearing denied April 24, 1933.
    Charles A. Williams, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson and Grenville Beardsley, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Hattie Jones, alias Johnson, plaintiff in error.
    Gen. No. 36,399.
    Opinion filed April 10, 1933.
    Samuel A. Aronfeld and Eugene McCaffrey, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Otho S. Fasig and Edward E. Wilson, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Joseph Schneiderman, appellee, v. Home Bank and Trust Company et al., defendants, on appeal of Ellsworth T. Martin, appellant.
    Gen. No. 36,422.
    Opinion filed April 10, 1933.
    Stephen A. Cross, for appellant. Henry W. Kenoe, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Nick Ortoleva, appellee, v. The John Hancock Mutual Life Insurance Company of Boston, Massachusetts, appellant.
    Gen. No. 36,434.
    Opinion filed April 10, 1933.
    Rehearing denied April 24, 1933.
    Hoyne, O’Connor & Rubinkam, for appellant. Joseph B. Lofton, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Louis Yablin, trading as the Chicago Float Works, appellee, v. The Union Products Company, appellant.
    Gen. No. 36,451.
    Opinion filed April 10, 1933.
    Rehearing denied April 24, 1933.
    Blanksten, Freeman & Freeman, for appellant. Herman Aschin, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Bertha Gers, appellee, v. Benefit Association of Railway Employees, appellant.
    Gen. No. 36,504.
    Opinion filed April 10, 1933.
    Rehearing denied April 24, 1933.
    Stebbins & L’Amoreaux, for appellant; John M. Allen, of counsel. Bederman, Klein & Gralnek, for appellee; Richard R. Klein, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    S. A. Glover, plaintiff in error, v. Cosmopolitan Life Insurance Company, defendant in error.
    Gen. No. 36,521.

      Opinion filed April 10, 1933.
    Rehearing denied and opinion slightly modified April 24, 1933.
    Schofield & Wood, for plaintiff in error; Frank Schofield and David H. Kraft, of counsel. A. F. W. Siebel, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    In re Petition of Stanley Bafia, insolvent debtor, appellant, v. William C. Lange, administrator of the estate of John Lange, deceased, appellee.
    Gen. No. 36,303.
    Opinion filed April 10, 1933.
    Rehearing denied April 24, 1933.
    J. Kentner Elliott, for appellant. Bederman, Klein & Gralnek, for appellee; Richard R. Klein, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Dena Bradley, appellee, v. Mrs. K. Langdon, appellant.
    Gen. No. 36,309.
    Opinion filed April 10, 1933.
    Braun, Anderson & Norby, for appellant; Joseph H. Braun and Joseph P. Brodie, of counsel. Wendell E. Green, for appellee; Wendell E. Green, Henry C. Ferguson and Theodore T. Robinson, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    John E. Madden and James M. Madden, executors, etc., appellees, v. Mrs. P. P. Flaherty, appellant.
    Gen. No. 36,318.
    Opinion filed April 10, 1933.
    Henry M. Seligman for appellant. Marcus L. Silver, for appellees; Albert L. Goldman, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    J. Rand, trading as Randcraft Clothes, appellee, v. A. Starsiak, appellant.
    Gen. No. 36,379.
    Opinion filed April 10, 1933.

      Blanksten, Freeman & Freeman, for appellant. Edward Graff, for appellee; Louis D. David, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


author: Mr. Justice MatcEett

text:
    The People of the State of Illinois, defendant in error, v. Herman J. Goldberg, plaintiff in error.
    Gen. No. 36,398.
    Opinion filed April 10, 1933.
    Rehearing denied April 26, 1933.
    William J. Moran and Richard E. Westbrooks, for plaintiff in error; Richard E. Westbrooks, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson and Otho S. Fasig, Assistant State’s Attorneys, of counsel.
   Mr. Justice MatcEett

delivered the opinion of the court.


text:
    Joseph B. Kovarik, appellee, v. The Home Insurance Company, appellant.
    Gen. No. 36,445.
    Opinion filed April 10, 1933.
    William J. La Velle, William McKinley and Paul E. Price, for appellant. Edward E. Contarsy and Jacob Kosbie, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    The Tobey Furniture Company, plaintiff in error, v. Edward H. Ahrens, defendant in error.
    Gen. No. 36,456.
    Opinion filed April 10, 1933.
    Meyer Shapiro, for plaintiff in error. Joseph L. Toohey, for defendant in error.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Louise Shahinien, appellee, v. John Shahinien, appellant. John Shahinien, appellant, v. The People of the State of Illinois, appellee.
    Gen. No. 36,457.
    Opinion filed April 10, 1933.
    Lefkow & Lefkow, for appellant. Coburn, Kearney & Coburn, for appellee; Marshall V. Kearney, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Herman Rieser, defendant in error, v. Donald S. Engelhart et al., plaintiffs in error.
    Gen. No. 36,516.
    Opinion filed April 10, 1933.
    Tage Joranson, for plaintiffs in error. Sonnensehein, Berks on, Lautmann, Levinson & Morse, for defendant in error.
   Mr. Justice Matehett

delivered the opinion of the court.