text:
    Charles H. Albers, Receiver of North Avenue State Bank of Chicago, Appellee, v. R. Allen Griffith, Appellant.
    Gen. No. 40,145.
    Opinion filed February 1, 1939.
    William Friedman, of Chicago, for appellant; Sylvia J. Zelden, of Chicago, of counsel.

      Norman C. Barry, of Chicago, for appellee; Sylvester J. Cotter, of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal by defendant from a judgment for the sum of $7,225.83, entered against him in the municipal court of Chicago on January 14, 1938. The action is upon a promissory note given by defendant to the North Avenue State Bank for money borrowed from this bank. Certain collateral was deposited with the hank as security for the loan.

Errors relied on for reversal are that: 1. The statement of claim failed to state a cause of action, 2. No averments or proof of plaintiff’s ownership of the note in evidence, or his capacity to sue, 3. No averment or proof of an assignment or any indorsement of the note, 4. No prayer for judgment or other relief, as provided for in Buie 78 of the Municipal Court.

The statement of claim is as follows:

“To the Clerk:
“Please issue a summons returnable at 9:30 A. M. sharp on the 23rd day of March, 1937.
“Statement of Claim
“Plaintiff alleges: That his claim is for Seventy-two Hundred Twenty-five and 83/100 ($7225.83) Dollars, representing a balance of Fifty-six Hundred Fifty-four and 60/100 ($5654.60) Dollars, plus interest of Fifteen Hundred Seventy-one and 23/100 ($1571.23) Dollars, due on a certain note signed by the above defendant, copy of which is hereto attached. Although repeated requests have been made of the defendant to pay the aforesaid sum, he refused and continues to refuse, etc.
“Norman C. Barry
Attorney for Plaintiff
7 South Dearborn St. Franklin 9250
Business or Residence Address
“Affidavit of Claim.
“William B. Greene, being duly sworn, on oath states that he is the agent of the Plaintiff in the above entitled cause, that he has knowledge of the facts; that the said clause is a suit upon contract for the payment of money; that the nature of plaintiff’s demand is as stated, and that there is due to plaintiff from the defendant after allowing to defendant all just credits, deductions and set-offs the sum of Seventy-two Hundred Twenty-five Dollars and Eighty-three Cents ($7225.83).
“Subscribed and sworn to before me this 10th day of March, A. D. 1937.
“Hilliard Kirsch
Notary Public William B. Greene ’ ’

In the abstract it is stated that the record contains a copy of collateral demand note of defendant dated March 31, 1932, for $6,750, payable to the order of North Avenue State Bank of Chicago, and that the collateral consisted of 100 shares of Continental Casualty Co., 100 shares of Houdaille Hershey Corp., Class A, and 12 shares of Eaton Axle & Spring Co., Common. Also, that indorsed on the note appear offsets and credits of dividends paid by sales of 12 shares of Eaton Axle & Spring Co. stock, and of 10 shares of Houdaille Hershey Corp. stock, Class A.

Defendant was called as a witness for plaintiff, and on direct examination testified to the effect that he signed the note in question; that he originally borrowed around $5,000, although he could not swear as to the exact amount; that he did not know what the exact figure of the balance on the note was at the time of the trial; that he knew that he was being sued for the balance due on the note, which is $5,654.60 and interest of $1,571.23, and that he “guessed” that was right; that he made payments on the note from time to time; that he thought he made those payments indorsed on the back, although he could not swear to it, and that he did know that the substance of this suit is for $5,654.60 plus interest. On cross-examination he testified to the further effect that he could not swear that he made the certain payments indorsed on the note, although he “presumed so”; that he would “presume” that he made the payments either in cash or by check, probably by check; that he did not make payment of the item credited on the sale of 12 shares of Eaton Axle & Spring* Company, and that he “supposed” that was from the proceeds of sale of those shares; that he did not make payment of $588.50 credited on the back of the note but that this item was credited on a sale of the collateral; that the $30' item so credited is either interest he paid or dividends collected on the stock, and that he did not remember which.

The record shows that the cause was submitted to a jury, and that the court directed the jury to return a verdict in favor of plaintiff for $7,225.83, upon which verdict the judgment was entered. .

As we read the points made in defendant’s brief, we conclude that defendant admits liability on this note, but insists that inasmuch as the note was made payable to the bank and the suit is brought by the receiver of the bank, that there is no sufficient proof made of plaintiff, receiver’s, ownership of the note, that there was no assignment of the note by indorsement or otherwise to the plaintiff, that the complaint filed contains no prayer for a judgment, and that there was no proof made of plaintiff’s capacity to sue. He also contends, as a ground for reversal, that there was no evidence offered as to what, if anything, was done with the proceeds of any sale of the collateral given as security for the note, if the same had been sold. While there is no direct evidence as to what was done with any of this collateral, or the value thereof, defendant admits that he was given credit for the amount realized from the sale of certain shares of stock in the Baton Axle & Spring Company, which shares were a part of the collateral given as security for the note at the time of its execution. He also admits other credits given. Attached to plaintiff’s claim was the affidavit of the agent of the plaintiff, in which it is stated that the total amount of the claim, after deducting all credits, deductions and set-offs, amounted to $7,225.83. If defendant was of the opinion that he had not received the credits due him, he could very readily have established that fact, and in our opinion, the objection of defendant, in this regard, is without merit.

It is not claimed that the plaintiff was not the duly and legally appointed receiver of the bank under the authority provided by law. Section 11, ch. 16%, par. 11, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 10.11], provides that if a receiver is appointed for a bank in accordance with the law, 1 ‘ such receiver, under the direction of the Auditor, shall take possession of, and for the purpose of the receivership, the title to, the books, records and assets of every description of such bank, and shall proceed to collect all debts,- dues and claims belonging to it, and, upon the order of a court of record of the county in which said bank is located, may sell or compound all bad or doubtful debts, and on a like order may sell the real and personal property of such bank, on such terms as the court shall direct. . . . Such receiver shall have authority to sue and defend in his own name with respect to the affairs, assets, claims debts and choses in action of such bank.”

We are of the opinion that all points raised by defendant were matters of defense, and that if he did not choose to urge them, he cannot now complain.

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Hebel and Denis E. Sullivan, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Hall

license: Public Domain

text:
    Petronella Garionis and Stanley Tolekus, Appellants, v. Z. S. Mickevice, Trading as Z. S. Mickevice and Company, and Gust Nasios, Appellees.
    Gen. No. 40,201.

      Opinion filed February 1, 1939.
    Joseph J. Grish, of Chicago, for appellants.
    No appearance for appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

Two separate actions, one by Petronella Garionis, the other by Stanley Tolekus, were brought in the municipal court of Chicago, against Z. S. Miekevice, doing, business as Z. S. Miekevice & Company, and Gust Nasios. Bach action is predicated upon a separate contract, alleged to have been made by each of the plaintiffs with the defendants, for the purchase from Nasios of certain real estate. In each case plaintiffs seek to recover moneys paid to defendants as part payment for the real estate agreed to be purchased by each of the plaintiffs from Nasios, because of the alleged breach, by defendants, of the contract between the parties. In each case a counterclaim was filed by defendants against plaintiffs, seeking to recover the balance alleged to be due from each, on such contracts. By agreement of all the parties, the two causes were consolidated and a hearing* had in each case. In each case the court found for the defendants and entered judgment against each plaintiff for the balance claimed to be due. This is an appeal from the two judgments. The two causes are docketed here as one case on appeal. There is no appearance here by either of the defendants.

In the Garionis case, plaintiff alleged that on April 21, 1937, she entered into a contract with Gust Nasios, by which she agreed to purchase from Nasios certain real estate in the city of Chicago for the sum of $1,300; that the deal was made through the Miekeviee firm, and that on that date she paid to the defendant Miekeviee the sum of $200 in cash, and also executed a note for the sum of $100; that the contract which was signed by both Petronella Garionis and Gust Nasios recited, among other things, that Nasios agreed to sell to Petronella Garionis certain real estate for the price mentioned, title thereto to be conveyed by warranty deed, free from all incumbrances and subject only to taxes levied for the year 1937, the special assessments for the years 1936 and 1937 to be prorated. The contract further recited the amount of payments made, as before suggested, and plaintiff further agreed to pay the balance at the office of the defendant Miekeviee within five days after the title had been found good, provided that the warranty deed of conveyance would convey to plaintiff a merchantable title. The contract also provided that:

“A Certificate of Title issued by the Registrar of Titles of Cook County, or complete merchantable Abstract of Title or merchantable copy brought down to date hereof, or merchantable title Guaranty Policy made by C. T. & T. Co. shall be furnished by the vendor within a reasonable time, which abstract shall, upon the consummation of this sale remain with the vendor, or his assigns, as part of his security, until the deferred installments are fully paid.” The complaint recited that plaintiff had made repeated demands for a guaranty policy, or for. the return of her money and note, but that defendants had failed to deliver either an abstract showing-a merchantable title, or a guaranty policy made by-the Chicago Title & Trust Company, or' to return her money and note.

In the Stanley Tolekus case, it is charged that on September 23, 1937, the defendants entered into the same character of contract with Tolekus as that made with Petronella Garionis, except that it was for the conveyance of a lot adjoining the lot agreed to be conveyed to Petronella Garionis, and the down payment made by Tolekus was $300 in cash instead of $200 in cash and a note.

Defendants introduced in evidence a document issued by the Chicago Title & Trust Company on June 22, 1937, addressed to the defendant Mickevice, in which it is stated that the Chicago Title & Trust Company had received an application for a guaranty policy on the two lots mentioned to include June 15, 1937, and in which it is stated that a guaranty policy would be issued subject to the usual terms and subject to taxes for the years 1930 to 1937 inclusive, also subject to the fact that the two lots were forfeited to the State of Illinois on June 14,1934, for general taxes for the year 1930 and 1931; reciting forfeiture to the State for general taxes for the year 1933; also subject to certain building restrictions, and stating* that a certain person who held title to the property had died on August 5, 1930, leaving certain heirs surviving*, and reciting* that there were certain unpaid claims against the estate of the owner of these lots.

An examination of the record clearly indicates that these defendants had not complied in any respect with their agreement to furnish plaintiffs with what is termed a merchantable title to these properties, but on the contrary, it is apparent that they were unable to give plaintiffs any title whatever, free and clear of incumbrances. It is indicated that the back taxes due grid unpaid amount to more than the purchase price of the properties.

The judgment of the municipal court of Chicago is reversed and the cause is remanded with the direction that the court enter a judgment in favor of plaintiffs in each case for the sum of $300 and costs of suit.

Reversed, and remanded with directions.

Hebel and Denis B. Sullivan, JJ., concur.


text:
    Otto Bezouskas, Administrator of the Estate of John Bezouskas, Deceased, Appellant, v. Albert Kruger, Appellee.
    Gen. No. 40,213.
    Opinion filed February 1, 1939.
    Charles A. Bellows, of Chicago, for appellant.
    Hinshaw &) Culbertson, of Chicago, for appellee; Oswell G-. Treadway, of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal from a judgment against plaintiff for costs entered in the circuit court of Cook county in a proceeding brought by plaintiff as administrator of the estate of John Bezouskas, deceased, in which it is charged that John Bezouskas met his death through the negligence of the defendant. The court submitted the case to a jury, which returned a verdict of not guilty, upon which judgment was entered.

The specific charge in the declaration is that on December 19, 1935, defendant so carelessly and negligently operated the automobile which he was driving, that at a point designated as being near the premises known as 2841 south Ashland avenue in the city of Chicag’o, defendant struck John Bezouskas and so severely injured him that he died.

The motorman of a street car, being operated at or near the point where the accident is alleged to have occurred, testified to the effect that as he approached the vicinity of 2841 south Ashland avenue, he saw something lying on the tracks; that he stopped his car and saw two persons pick up the body of a man and carry him to an adjoining building; that the body was lying about six feet from the safety island on the west side of the street, and that the feet were partly on the safety island; that the street car being driven by the witness was southbound; that he could see ahead of him as much as a block; that the time was about 7 o ’clock in the morning, and that the day was cloudy and that it was snowing; that the street car lights were on at the time, but that there were no street lights.

Another witness for plaintiff testified to the effect that he knew the deceased; that at about 7:35 o’clock on the morning in question, he saw a crowd of people near 2841 south Ashland avenue, standing on the safety island; that he went over and saw John Bezouskas lying partly on the safety island and partly on the car tracks, and that Bezouskas afterwards died in the hospital.

A police officer produced by the plaintiff as a witness, testified that on the day in question he saw and conversed with the defendant at the Brighton police station about 45 minutes after the accident. Plaintiff’s counsel then asked the police officer the following question : “Q. What did you say to him and what did he say to you f ’ ’ This question was objected to by counsel for defendant, and after a conference out of the presence of the jury, the court held that statements made by defendant to the officer at the time and place mentioned were “a part of the res gestaeoverruled the objection and permitted the witness to testify. His testimony, in reply to interrogatories propounded by the court, was to the effect that he saw the defendant about 40 or 45 minutes after a man had been taken into Stein hall, which was apparently a room near the scene of the allegud accident; that this man was removed to the county hospital in an unconscious condition; that the witness at that time had no conversation with the defendant, but that he afterwards did have a conversation with him. This witness stated that he asked the defendant if he, defendant, was the driver of the car which was out in front of the station, and the defendant answered that he was; that defendant told the witness that he was going south on Ashland avenue at 25 to 28 miles an hour; that he saw a man on the safety island, and that “the thing happened so fast that he struck that man.” The witness then stated that he asked defendant how far he went after he struck the man before he stopped, and that defendant said he went to the end of the safety island, swung his car away from the safety island to the west curb to clear the traffic; that defendant stated that he went back to where the man was lying in the car track, and that part of the man’s body was in the car track and part on the safety island. The witness stated that he asked the defendant why he did not swerve his wheel when he saw the man, and that defendant said he could not do so because it all happened so fast; that the man was on the safety island when he, the defendant, saw him, and that defendant heard the impact and went back to see what happened. The court then asked this witness the following questions and received the answers noted:

“Q. The man never stepped off into the car, and the car never got up onto the safety island!
“A. I am only telling the Court what he told me. It is either one way or the other.
“ Q. Your reaction to it. The man on the safety island — the car must have gone past him!
“A. Part of the car must have gone by the man, because the man was hit by the mud guard.
“Q. Did you find any indications on the car!
“A. No, only a dent in the rear right mud guard, showing where the impact took place.
‘ ‘ Q. Can you prove it!
“A. He either stepped off or he stepped into it, one or the other.
“Q. Who did!
“A. The man on the island.
“Q. Stepped!
“A. Stepped.
“Q. In front of the car!
“A. Well, if he stepped directly off in front of the car, the front of the car would have hit him.
“Q. Then your conclusion is that part of the car hit him in the back!
“A. Or else he swerved a little bit, but he was in the rails.
“Q. You mean the man was so close to the edge of the safety island!
“A. There is only two inches between the safety island and the southbound, west track of the southbound rail, there is only about two inches in between there.
1 ‘ Q. Did he say where the man was!
“A. Yes, he said he was about four feet from the north end of the safety island, where you get on the southbound ear, where the man got off that ear. ’ ’

On cross-examination by defendant’s counsel, this witness testified to the effect that he took a statement from the defendant on a piece of paper, and that the witness did not know where this statement could be found; that he examined his files and could not locate it, but that he recalled the answers given by the witness; that at the time the statement was taken, the witness willingly signed it; that the witness was perfectly sober; that the witness had defendant’s statement at the inquest, but did not read it into the record; that the witness stated that defendant, in such statement, told the witness that he was at all times riding within the street car rails; that he, the police officer, found no eyewitnesses to the accident, and that a car could not run over the safety island because the abutment is more than 2 feet high and made of heavy concrete.

Plaintiff, the son of the decedent, testified as to the age of his father. Over objection, the witness was permitted to answer the following questions put by counsel for the plaintiff: “Q. Did you ever have occasion to watch your father when he crossed the street? A. Yes, sir. Q. Do you know whether he was careful? A. Yes, sir.” At this point, defendant’s counsel moved to strike the answers and the motion was sustained. Plaintiff attempted to prove the amount of funeral bills paid for the burial of his father, to which objection was made by counsel for defendant, which objection was sustained.

Over the objection of plaintiff’s counsel, defendant was allowed to and did testify, and his testimony was to the effect that the car he was driving was just purchased by him, and that he had owned it about 3 weeks; that on the morning in question at about 7:30 he was on his way to work and that it was snowing at the time; that the safety island upon which decedent was standing is about 4 feet wide and 50 feet long, raised from the street about 6 inches and built of concrete; that he was coming from the north going south, and that at the north end of this concrete safety island is a bumper made of metal; that he was proceeding at the rate of 25 to 27 miles an hour as his car approached the safety island, and that he was then straddling the inner rails of the street car tracks; that he saw the man on the safety island just a few feet before he got there, and that the man was then standing about a foot and a half to the west of the east side of the island and about 4 or 5 feet to the south of the end of the abutment; that he did not change the direction of his car as he proceeded and that the man stood in the same position ; that the first indication the witness had that something was wrong, was when just about the time he had passed the man on the safety island, he heard a thump and looked back and saw the decedent lying across the tracks, and that the thump came from the back, and that at that time defendant was about 8 feet past the decedent. Defendant stated that he then coasted a little bit because there were cars coming north, and that he turned right around to the left and came back and stopped on the east side of the street, got. out of his car and proceeded to where the man was lying*, and that at that time, two men were picking the decedent up; that the witness picked up decedent’s cap and walked over to the entrance of the building to where he had been taken; that he then went with the police to the police station and that he there made a report and signed a statement; that he afterwards went back to the police station to recover his car and that he then discovered that there was a dent on the right rear fender of the car which was not there before the accident. He also stated that his brakes were good, and that from the time he first saw the decedent standing on the safety island, he did not again see him.

The grounds for reversal urged are that the court erred in refusing to permit plaintiff to prove the habitual care of the decedent while crossing streets; in refusing to allow plaintiff to prove funeral expenses against the defendant causing* the wrongful death; in permitting defendant, who was disqualified as a witness, to testify, and in instructing the jury. It is also urged that the verdict is against the manifest weight of the evidence.

No eyewitness, except defendant, was produced at the trial. However, the written motion for a new trial which was filed in the cause, is supported by an affidavit by the attorney for plaintiff, which affidavit is supported by the affidavits of two apparently disinterested persons. They state, in substance, that prior to the trial, plaintiff’s attorney was given the name of an alleged eyewitness by an attorney who formerly represented plaintiff in the cause, and that plaintiff’s attorney, in the trial and here, employed investigators to subpoena the named witness, but that they were unable to locate such witness. If there were eyewitnesses, as stated in the affidavits, no showing* was made before the trial began that any effort had been made to locate these witnesses, and no representation was made to the court before or during the trial that any such witnesses existed.

In Casey v. Chicago Rys. Co., 269 Ill. 386, a somewhat similar st'iate of facts was presented. In that case, the body of a boy was found on the street ráilway tracks about 11 o’clock in the evening* and the finding was reported to the office of the street railway company. No one saw the accident, and the only evidence that a street car had come in contact with a human being was that one of the cars operated on the street where the boy was found, was examined in the barn and upon the brake shoe on the side of the car, blood and some particles of flesh were found. There being no eyewitnesses and no facts susceptible of being-proven which would in any way disclose how the boy came to his death, the plaintiff in that case, which was an action predicated upon the fact that the boy met his death through the negligence of the railway company, was allowed to prove the habits of the boy as to care, caution and prudence, as tending to raise the presumption that he was in the exercise of due care and caution for his own safety at the time he was killed. The motorman and conductor of the car upon which the blood and particles of flesh were found, both testified that the car in question on the evening in question was running at a rate of speed of about 7 or 8 miles an hour at the place where the boy was found, and that there was no unusual movement of the car, or anything to indicate that the boy had been struck, and in its opinion, the court said: .

“There was no direct proof and no facts proven from which it could be inferred that plaintiff in error was in anywise negligent or that this fatality was the result of any negligence on its part. The mere fact that the boy was killed does not impute negligence to plaintiff in error, and it does not follow, in the absence of eyewitnesses or any direct proof as to the occurrence, that plaintiff in error was negligent merely because proof on the part of defendant in error tended to raise the presumption that the deceased was in the exercise of due care and caution for his own safety. The person killed might be in the exercise of due care and caution for his own safety and still the death be the result of an accident for which no one is to blame.

“Because of the failure of defendant in error to make any proof tending to show negligence on the part of the plaintiff in error the court erred in refusing to give the peremptory instruction as requested by plaintiff in error.”

In the instant case, we must conclude from the record that there is not one scintilla of evidence to suggest that the defendant was g'uilty of any negligence whatever. Therefore, any inquiry as to decedent’s ‘ ‘ habits, ’ ’ even if the questions propounded on the subject by plaintiff’s counsel were in proper form, would be useless. The record indicates that the examination of the police officer by plaintiff’s counsel and by the court was conducted, and he was questioned, in most respects, as though he were a witness to the accident, and we are of the opinion that the entire examination was improper. In view of the fact that plaintiff produced this witness, and that he was permitted to testify over defendant’s objection, we must conclude that the court was not in error in permitting the defendant to testify. There being no evidence to justify a finding of guilty, our conclusion is that the other errors assigned need not be considered.

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

Judgment affirmed.

Hebel and Denis E. Sullivan, JJ„., concur.


author: Mr. Justice Hebel

text:
    Elizabeth J. Spry and Frank Jager, Appellees, v. Chicago Railway Equipment Company, Appellant.
    Gen. No. 39,796.
    Opinion filed February 1, 1939.
    Musgrave, Oppenheim, Price & Ewms, of Chicago, for appellant.
    Harris F. Williams and Egbert C. Baumgartner, both of Chicago, for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.

The defendant appeals from a judgment entered by the court for $5,025.69, which was entered in a proceeding instituted by the plaintiff to recover certain sums claimed to be due under a contract. The defendant filed its answer, admitting part of the sums claimed to be due, and denying liability as to the remainder. After partial judgment had been entered and satisfied, the plaintiffs filed their motion for a summary judgr ment. The court heard the motion on the pleadings, affidavits and other papers submitted by the parties and rendered judgment against the defendant, from which the defendant appeals.

The plaintiff’s complaint sets up a contract, dated December 30-, 1929, between the plaintiffs and the defendant, which recites that the plaintiffs were assignees of certain letters patent for improvements in railway car door construction, and the defendant was desirous of obtaining the right to manufacture and sell the inventions and improvements covered thereby. The invention covered by these letters patent was a certain ball-bearing car door hanger. In the contract the defendant is granted the exclusive right to make, manufacture and sell the articles covered by the patent. It agrees to pay $3,-000 to the plaintiffs within 10 days after the agreement is executed, and further agrees to pay quarterly a royalty of 50 cents per car set for each set sold. A minimum royalty of $1,500 per year is provided, the payment of any deficiency in the minimum royalty to be made 60 days after the close of each calendar year.

Section eight of the contract provides that the plaintiffs shall pay one-half of the cost of defending either of the parties to the contract, or such other parties as shall be sued in any suits for patent infringement arising out of or incidental to the practice and use by the defendant of the inventions covered by the agreement, and permits the defendant in its discretion to institute infringement suits. It further permits the defendant to retain one-half of the royalties payable to the plaintiffs to defray the expenses of litigation.

The complaint further states that $3,000 was duly paid upon the execution of the contract, and also royalties for the years 1930 and 1931. The plaintiffs claim as due and unpaid $1,500 for each of the years 1932, 1933, 1934 and 1935, and asked judgment for the aggregate amount of said sums, with interest thereon from the dates the respective sums became due.

The defendant filed its answer, admitting the contract and that payments had been made as set forth in the complaint. It admitted that $1,766.79 was due the plaintiffs under their contract with the defendant, and stated that this sum had been tendered to them by it. It disclaimed liability for the further sum of $4,233.21, demanded by the plaintiffs, this sum having-been retained by the defendant pursuant to section 8 of the contract sued upon, wherein the plaintiffs had agreed “to pay one-half the cost of defending either of the parties hereto, or such other parties as shall be sued in any suits for patent infringements arising- out of or incidental to the practice and use by the party of the second part of the inventions covered by this agreement. . . .” The defendant further alleges that a certain suit in equity for patent infringement entitled, “Camel Company v. Chicago Bail way Equipment Company, ’ ’ instituted in the District Court of the United States, was a suit within the purview of said section of the contract; that it had expended $8,466.41 in defense of the suit, and under the terms of the contract, had retained the balance of royalties earned under plaintiffs ’ contract with the defendant, in the sum of $4,233.21 as plaintiffs’ contribution to the expense of defending- the infringement suit.

The defendant in this action contends that in construing the contract sued upon the court will determine the intent of the parties from the terms of the instrument when read in connection with the facts and circumstances surrounding the parties at the time of its execution. In particular, it must construe section 8 of the contract and determine what suits are included within the scope of its language, and in order that we may have this section properly before us, it will be well to quote it literally.

‘ ‘ Eighth: The parties of the first part agree to pay one-half the cost of defending either of the parties hereto, or such other parties as shall be sued in any suits for patent infringements, arising out of or incident to the practice and use by the party of the second part of the inventions covered by this agreement, and also agree, in the discretion of the party of the second part, to pay one-half the cost of prosecuting suits or actions against any person or persons who may infringe or jeopardize said letters patent, or any of them, or any improvements thereof, as covered by this agreement. It is understood that the party of the second part may retain, for such litigation purposes, one-half of the royalties due after the institution of any such suit, and that the party of the first part shall not be liable for litigation expenses in excess of the amount so retained. In the event of purchase option being exercised in accordance with paragraph eleventh hereof, any such fund which shall have accrued to be released.”

The answer of the plaintiff to this contention is that the contract in question is clear and unambiguous and does not require construction. Under the contract plaintiffs agreed to pay one-half the cost of defending any patent infringement suits that might be brought against the defendant for using the door hanger, the invention involved. The Camel Company sued the defendant for an alleged infringement of a movable door jamb — a device having nothing to do with a door hanger. Consequently, the defendant had no right to charge the plaintiffs with one-half of those defense costs. The defendant’s affidavit of merits and the supporting affidavits fail to show a sufficiently good and bona fide defense on the merits to entitle the defendant to defend the action.

Plaintiff also calls attention to the fact that the contract between the plaintiffs and the defendant, signed on December 30, 1929, and providing for plaintiffs to pay one-half the costs of infringement suits “arising” from the defendant’s use of the door hanger, did not cover or include the Camel Company suit filed on March 27, 1929, some 9 months prior thereto.

The language that is pointed to as being ambiguous and uncertain is: “arising out of or incident to the practice and use by the party of the second part of the inventions covered by this agreement. ’ ’ In the discussion of whether the above quoted words are ambiguous and uncertain, it is necessary to consider the nature of the contract involved in the litigation. The contract was entered into between the parties in order that the defendant might obtain the exclusive right to manufacture and sell for commercial uses the inventions set forth and described in the letters patent issued by the United States and the Canadian Grovernment, and the defendant is given the exclusive right by the plaintiffs to manufacture, sell and dispose of the articles covered by said inventions and the patents described in the contract. This statement is further amplified by the paragraph which we have quoted above, in which the plaintiff agrees “to pay one-half the cost of defending either of the parties hereto, or such other parties as shall be sued in any suits for patent infringements, arising out of or incident to the practice and use by the party of the second part of the inventions covered by this agreement.”

This agreement, which is part of the contract, clearly indicates that according to the subject matter of the agreement the defendant has the right to use and sell the patented articles described therein. We have already indicated that the subject matter of this contract is the right to manufacture, sell and use the patented articles. This seems to be clear, not ambigúous. The contract further provides that the plaintiff is to pay one-half the cost of defending either of the parties hereto if there is a suit or suits for patent infringement which may arise out of or incident to the practice and use by the party of the second part of the inventions covered by the agreement. This statement does not seem to be ambiguous. The contract is clearly for the purpose of giving the defendant the right to manufacture and sell the patented articles, and provides for the defense of suits for infringement that may be instituted against the defendant for the practice and use of the articles invented.

The Camel Company, a competitor of the defendant in the manufacture of car door units, manufactured and sold a car door unit embodying a movable door jamb. This door jamb competed on the market with the one sold by the defendant. The Camel Company instituted a patent infringement suit in the United States District Court, Chicago, charging that the movable door jamb construction embodied in defendant’s car door unit infringed its patents on such construction. In fact, as it was afterwards decided in this infringement suit, the movable door jamb designed and built by the defendant, incorporated no patentable feature and infringed no patents.

The plaintiffs contend that the parties contemplated that the plaintiffs should contribute to the cost of defendant infringement suits charging infringement solely in the manufacture, sale and use of the door hanging device, but the defendant contends that had the parties intended defendant’s right to be so limited the contract would simply have designated infringement suits “arising out of the manufacture and sale” of the articles covered by the inventions, instead of the broader more inclusive words, “incident to” in addition to the words, ‘ ‘ arising out of. ’ ’ These words used in conjunction with the words “arising out of” must be intended to enlarge the meaning of the former term. The only effect of both terms is to show an intent to cover any and all practices and uses made of these inventions by the defendant.

We are not inclined to follow this suggestion for the reason that the inventions covered by the agreement between the plaintiffs and the defendant refer to and cover a ball-bearing car door hanger. The movable door jamb had nothing to do with the door hanger, which is a wholly different device. It did not incorporate or claim any of the features of construction of the door hanger, and the answer of the defendant to the plaintiffs ’ written requests for admissions, is, in part, as follows:

“4. Said features of construction charged in said equity suit to be an infringement of Camel Company’s patents are not disclosed or claimed in plaintiffs’ patents under which defendant was licensed by said contract dated December 30, 1929.

“5. The charge of infringement in said equity suit was based upon a movable door jamb construction.

“6. None of plaintiffs’ patents under which defendant was licensed by said contract of December 30, 1.929, discloses or claims any movable door jamb construction. ’ ’

The contract in question, as we construe it, permitted the defendant to use the ball-bearing car door hanger, and the practice and use by the party of the second part was to be determined by the defendant, and the use that was to be made of the door hanger did not enlarge the meaning to the extent that the plaintiffs should contribute for any infringement costs arising from its use or sale of a completed car door, and if by the practice and use by the defendant of this door hanger it infringed a patent which was issued to a third person in regard to the construction of a door, the matter would have to be determined by a suit in which infringement is charged, and this of course would not make the plaintiffs liable because of the provision in the contract that they will contribute one-half the cost of defending* the parties thereto. This is further emphasized by the words, “arising out of or incident to the practice and use by the party of the second part of the inventions covered by this agreement. ’ ’ This limits the liability of the plaintiffs in an action of the character we have before us — an infringement that may arise out of the practice and use of the ball-bearing- car door hanger.

The defendant contends that the court erred in sustaining plaintiffs’ motion for a summary judgment. The Civil Practice Act provides for the entry of a summary judgment “unless the defendant shall, by affidavit of merits filed prior to or at the time of the hearing-on said motion, show that he has a sufficiently good defense on the merits to all or some part of the plaintiff’s claim to entitle him to defend the action.” (Section 57, Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 181; Jones Ill. Stats. Ann. 104.057].) As to what constitutes a good defense, this court stated in Chicago Title & Trust Co. v. Cohen, 284 Ill. App. 181: “The primary purpose of section 57 of the Civil Practice Act is to enable the court to determine whether there is an issue of fact which should be tried. In Dwan v. Massarene, 192 N. Y. S. 577, the Appellate division of the Supreme Court, construing a similar section, said:

‘ ‘ ‘ The defendant must show that he has a bona fide defense to the action, one which he may be able to establish. It must be a plausible ground of defense, something fairly arguable and of a substantial character. This he must show by affidavits or other proof.’ ”

The trial court, of course, must determine from the affidavits filed whether the defendant has interposed a sufficiently good defense to entitle it to defend, but where defendant’s affidavits present no substantial triable issues of fact, the court will grant the motion for a summary judgment. Plaintiffs call to our attention that even the defendant concedes that its affidavits do not raise any triable issues, for it says: “This case, as here considered, does not present close issues of fact, raising triable issues for a jury. ’ ’

We quite agree with that statement, for the sole question in this case is the construction by the court of the contract that was entered into by the parties, and the construction given was that the plaintiffs were not liable for costs entailed in the Camel lawsuit, and not being liable under paragraph 8, the court properly entered judgment for the amount due under the terms of the contract.

For the reasons stated in this opinion, we are of the opinion that the court properly entered judgment for $5,025.69, and it is affirmed.

Judgment affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.


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    Fred Habryl, Appellee, v. County of Cook, Appellant.
    Gen. No. 39,971.

      Opinion filed February 1, 1937.
    Rehearing denied February 15, 1939.
    Thomas J. Courtney, State’s Attorney, for appellant; Marshall V. Kearney, William J. Tuohy, Jacob Shamberg and Brendan Q. O’Brien, Assistant State’s Attorneys, of counsel.
    Nicholson, Snyder, Chad well & Fagerburg, of Chicago, for appellee; John R. Nicholson and James I. Johnson, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal from a judgment for $1,022.70, entered against the defendant in an action of assumpsit instituted by the plaintiff to recover compensation in addition to his regular salary for work performed after hours by the plaintiff, a regular employee, as deputy assessor of the county assessor of Cook county, which order herein appealed from commands the defendant to pay to the plaintiff a certain sum for overtime .compensation, together with his costs.

The complaint filed by the plaintiff states that he was employed by the defendant in the assessor’s office of Cook county, during the years 1933 and 1934 and was in charge of the records section of the administrative service division; that the statutes of the State of Illinois during* the said years, and up to the present time, provide that the number and compensation of deputies shall be determined annually by the county board, and such compensation shall be paid from the county treasury, and that the salaries or rates of compensation of all officers and employees of the county, when not otherwise provided by law, shall be fixed by the board of commissioners prior to the adoption of the annual appropriation, and shall not be changed during the year for which the appropriation is made; that pursuant to said statutes the board of commissioners of Cook county duly adopted appropriation bills for the years 1933 and 1934, providing* for extra help and overtime, setting forth the rate of compensation for extra men as “not to exceed $1.05 per hour for overtime or on holidays or Sundays,” further providing: “Overtime at the rates herein specified may be paid to regular employees from such appropriation as may be made for extra men,” and further providing: “That the salaries or rates of compensation of all officers and employees of the County . . . shall not be changed during* the year for which the appropriation is made”; that the plaintiff received during* the fiscal year 1933 a salary of $199.76 per month, and during the fiscal year 1934 a salary of $238 per month, which sums were in accordance with the appropriation bills; that plaintiff, while employed as aforesaid, during the period from September 1,1933, to October 1,1934, performed overtime work at the special instance and request of defendant in accordance with a schedule set forth therein, in a total of 974 hours; that immediately prior to the time the overtime services were rendered, plaintiff was paid for his overtime services at the rate of $1.05 per hour, pursuant to customs and usages obtaining in the assessor’s office which necessitated employment of a night force to assist in doing the work which the day force was unable to do; that the major part of the overtime was spent in supervising a night force, an extra service rendered by the plaintiff at defendant’s special request.

Count two of the complaint is an indebitatus count in assumpsit for labor and services performed by the plaintiff for the defendant of the value of $1,022.70. The complaint demands judgment against the defendant for said sum, to the date of filing* the suit.

The answer of the defendant filed subsequent to a motion to strike denies each and every allegation in the complaint, and states for a second and separate defense that the defendant is governed by the provisions of the statutes of Illinois providing that “the salaries or rate of compensation of all officers and employees of the County, when not otherwise provided by law, shall be fixed by the Board of Commissioners, and shall be fixed prior to the adoption of the annual appropriation, and shall not be changed during the year for which the appropriation is made”;

The answer further states for a third and separate defense that the Cook county appropriation bills for the years 1933 and 1934, in providing that “overtime at the rate herein specified may be paid to regular employees from such appropriation as may be made for extra men” are directory and not mandatory in nature.

It further states that the required authorization was to be given by the board of county commissioners or by the county assessor for the doing of and the payment for overtime work; that the board of county commissioners did not at any time authorize or contract to pay for overtime compensation to the plaintiff for the period from September 18, 1933, to October, 1934; that the plaintiff filed his claim for overtime compensation for said period with the board of county commissioners on January 3, 1934, and it was placed on file, no other action having been taken thereon; that the county assessor of Cook county signed a certain order which provides that division heads would, with the consent of the county assessor, authorize overtime in their respective departments, and provides that employees working overtime shall sign a time sheet, and further provides what action shall be taken in order that an employee may be paid for overtime services.

The cause having been transferred to a nonjury calendar was heard by the trial court without a jury, and evidence was introduced by both parties. The trial court sustained the contention of the plaintiff and entered a judgment for. $1,021.65, together with costs, and thereupon the defendant filed its notice of appeal.

The provisions of the Constitution of 1870 and the statutes of Illinois both require that the compensation or salary of county officers shall be determined in a fixed and certain amount by the county board in its annual appropriation bill and further provide that the compensation of no officer shall be increased or diminished during his term of office. This provision is contained in art. X, sec. 10, of the Constitution, and is in part as follows:

“The county board, except as provided in section 9 of this article, shall fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery and other expenses. . . . Provided, that, the compensation of no officer shall be increased or diminished during his term of office, . . . .” And further, the Illinois statutes (Ill. Rev. Stat. 1937, ch. 120, sec. 282 [Jones Ill. Stats. Ann. 119.324]) provide as to deputy assessors, as follows: “The number and compensation of the clerks and the deputies (other than the ex-officio deputies) shall be determined annually by the county board and such compensation shall be paid from the county treasury. ’ ’ It also is provided by said statute, ch. 34, sec. 64 (9) [Jones Ill. Stats. Ann. 33.069], as follows: “The salaries or rate of compensation of all officers and employes of said county, when not otherwise provided by law, shall be fixed by the board of commissioners and shall be fixed prior to the adoption of the annual appropriation, and shall not be changed during the year for which the appropriation is made.”

Plaintiff was a county officer during all of the period for which he claims overtime compensation. The county board of Cook county created a special position for him with a designated and fixed salary by providing for such position and salary in its annual appropriation bills of 1933 and 1934. The plaintiff received his entire salary as appropriated for each of the years 1933 and 1934, but he now claims additional compensation for overtime work performed by him from September 18, 1933, to October 1, 1934, relying upon the provisions contained in the appropriation bills for the years 1933 and 1934, as follows:

“Compensation for Extra Help and Overtime.

‘ ‘ Extra men by the day (eight hours to constitute a work day when the employment is during ordinary business hours, and five hours to constitute a work day when the employment is outside of ordinary business hours, or during the night or on holidays or Sundays) at not to exceed $5.25 per work day per man, and not to exceed $1.05 per hour for overtime or on holidays or Sundays. Overtime at the rates herein specified may be paid to regular employees from such appropriation as may be made for extra men.”

Because of the provision we have just cited, the plaintiff contends that he is entitled to recover extra compensation on the theory that it of itself created a contract which was binding upon the defendant.

This is answered by the defendant in its contention that the county board had no power or authority to put said provision in the appropriation bills for the years 1933 and 1934, and that said provision is a violation of the above quoted sections of the statute in that the county board attempted thereby to confer an additional compensation upon regular employees whose salaries were fixed by the appropriation bill, thus increasing their compensation in violation of the constitutional and statutory provisions.

It appears from the record that the county board of Cook county created a special position for the plaintiff by setting up such position and salary in its annual appropriation bills of 1933 and 1934. This fact is admitted by the plaintiff in his brief, wherein he says: “During the fiscal year 1933 he was assigned the position of ‘Principal Assessment Record Clerk’ and received a salary of $199.76 per month. . . . During the fiscal year 1934 he was assigned the title of ‘ Supervising Assessment Record Clerk’ and received a salary of $238.00 per month. His duties during the fiscal years 1933 and 1934 were the same, namely the supervision of the other clerks and comptometer operators.” The salary was fixed by the county board pursuant to sec. 282 of ch. 120 of the Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 119.324], which provides that “the number and compensation of the clerks and the deputies . . . shall be determined annually by the County Board. . . .” In passing upon this provision of the statute, the court, in People ex rel. Pollastrini v. Whealan, 353 Ill. 500, said: “The express power constitutionally conferred upon the board of commissioners respecting such deputies and assistants is to fix their compensation. When that duty is performed in any given year, a change in the salary or rate of compensation during the year for which the appropriation is made is forbidden by statute. The legislative purpose not to permit changes in the salaries or rates of compensation of the deputies and assistants designated, except periodically and in the manner defined, is manifest. ’ ’

The plaintiff, however, insists that the provision in the annual appropriation bill for extra time applies with equal force to regular employees, and by the provision of this particular appropriation a contract is implied that regular employees will be paid for overtime services at the rate provided for in the appropriation bill, but that contention does not meet the objections that have been raised to the payment for this overtime service, and the test is whether having a fixed salary appropriated for his particular position he can also receive overtime compensation for services claimed by him to have been rendered for the number of hours set forth in his statement of claim.

A number of cases have been before the courts in this State, wherein this question has been considered, and in the City of Decatur v. Vermillion, 77 Ill. 315, one in the office of pound-master was held not to be entitled to extra compensation for his duties in his office as a policeman, on the ground that he had accepted a public office'with a fixed salary. Likewise, the question was passed upon in Gathemann v. City of Chicago, 183 Ill. App. 210, wherein a foreman of machinists was held to be a salaried official not entitled to overtime compensation under an ordinance providing for overtime compensation for the1 regular employees, in the laboring class, whom he supervised, and the Supreme Court in affirming the judgment in 263 Ill. 292, held that he was a municipal officer, and could not recover under the facts and circumstances in that case. The same rule was applied to a deputy clerk, who as long as he had a stipulated appropriated salary could not legally demand overtime compensation. In May v. City of Chicago, 124 Ill. App. 527, affirmed in 222 Ill. 595, the court in that case said:

“The item in the appropriation in question for 1899 reads as follows: ‘ Extra clerks for special assessment work in city collector’s office at $3 per day, $7800.’ The item for 1900 is substantially the same. We do not think this item in the appropriation covers regular employees. Plaintiff was not an ‘extra clerk’ entitled to $3 per day. The Appellate Court rightly say that this clause of the appropriation ordinance ‘means what it says and will not bear the construction contended for.’ ” The Supreme Court cited with approval the case of City of Decatur v. Vermillion, 77 Ill. 315.

The defendant contends that the provision in the appropriation bills that regular employees may be paid for overtime does not obligate defendant to pay the plaintiff, on the grounds that such provision was not self-executing but required further action by the county board or county assessor creating liability for payment of additional compensation to the plaintiff, and no action having been taken, no contract was created obligating the defendant to the plaintiff.

Aside from the question of authority of the county board to appropriate moneys for overtime compensation to regular employees, it does not appear from the record that plaintiff was employed by any action of the county board or by the county assessor, and not having been authorized to do this particular work, the plaintiff, of course, would not be in a position to recover. The record is silent as to any act from which we could determine that the county board or county assessor authorized the employment of the plaintiff for this overtime service.

We are unable to agree with the theory of the plaintiff that the provision in the appropriation bills for overtime compensation of itself created a definite contract between the plaintiff and the defendant, and therefore obligates the defendant to pay plaintiff for the claimed overtime. This provision, if it is a proper one, is for the purpose of employing individuals to render overtime service, and of necessity there must be an indication that they are requested to perform such service by the proper officials. Such does not appear to be the fact from the record in this case. In Mitchell v. City of Chicago, 259 Ill. App. 301, the case was based upon the claim of a laborer who sued for overtime in excess of 8 hours constituting a day’s work at the rate of one and one-half times the daily wage earned. The ordinance relied upon is as follows:

“Provided, however, that in all cases of necessity or emergency, superintendents, foremen or others in authority are hereby authorized to work their employees such number of hours as such necessity or emergency may require; but for all labor performed in excess of 8 hours in any one day, such laborer or employee shall be entitled to and shall receive pay at the rate of time and one-half for all such labor performed. ...” The court denied the laborer’s claim for overtime compensation, and said: “The fact that the plaintiff worked more than eight hours a day would not entitle him to recover extra compensation under said ordinance, in the absence of an agreement. The facts in this case clearly indicate that it was not contemplated by the parties that the plaintiff was to be paid for time in excess of eight hours of work.” The fact that overtime compensation was not agreed upon, this court denied the claim in Sanitary District of Chicago v. Burke, 88 Ill. App. 196, and said:

“But the mere fact that he has voluntarily worked more than eight hours a day does not of itself authorize a demand for extra compensation under the act in question, unless it should also appear that extra compensation was agreed upon, or was reasonably within the contemplation of the parties at the time.”

The plaintiff seeks to overcome the authorities governing the question of overtime compensation. He took up the question of overtime with his immediate supervisor, stating that he expected to g*et paid for the extra hours he put in, and the supervisor said he would take the matter up with the assessor, which he did, and the supervisor reported to plaintiff that the assessor did not give him any definite answer as to whether the plaintiff would or would not be paid overtime. So that of itself would not indicate that the assessor authorized plaintiff’s overtime employment.

We have considered the facts and questions that have been called to our attention and are of the opinion that the trial court erred in entering judgment for the amount claimed by the plaintiff. Therefore the judg*ment for $1,022.70 is reversed.

Judgment reversed.

Hall, P. J., and Denis E. Sullivan, J., concur.


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    Anne O’Connor, Appellee, v. Frank C. Rathje, Appellant, James A. Murphy and Frank McGovern, Appellees.
    Gen. No. 40,069.
    Opinion filed February 1, 1939.
    Rehearing denied February 15, 1939.

      Levinson, Becker, Peebles & Swiren and Lord, Lloyd & Bissell, all of Chicago, for appellant ; Benjamin Y. Becker, Don M. Peebles and Curt H. Gr. Heinfelden, of Chicago, of counsel.
    Jacob Stagman, of Chicago, for appellee Anne O’Connor; Jacob Stagman, James C. O’Brien, Jr., and Thomas J. 0 ’Halley, Jr., of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

A direct appeal was taken by the defendant to the Supreme Court of Illinois from a judgment entered in the superior court of Cook county, Illinois, for $20,000, on the ground that constitutional questions were involved. The court after due consideration decided that constitutional questions were not involved, and transferred the appeal to this court.

This action was commenced in the superior court of Cook county by. Anne O’Connor, plaintiff. Frank C. Rathje, individually and as successor trustee to Foreman-State Trust and Savings Bank (successor by consolidation to the Foreman Trust and Savings Bank), as trustee under a certain indenture of trust dated as of August 1, 1927, made between A. Gr. Becker & Co. and the Foreman Trust and Savings Bank, as trustee, James A. Murphy, Frank McGovern, and Draper & Kramer, Inc., a corporation, were named as defendants in the original complaint. The original complaint and the amended complaint were dismissed on motion, and a third amended complaint was filed.

Frank C. Rathje, named as a defendant, individually and as successor trustee, filed a motion to strike the third amended complaint and to be dismissed from the cause. Draper & Kramer, Inc. filed a similar motion. The motions of Frank C. Rathje as an individual and of Draper & Kramer, Inc. were sustained. These defondants were dismissed from the case. The motion of Frank C. Rathje, as successor trustee, was denied. The plaintiff was given leave to file a fourth amended complaint, and Frank C. Rathje, as successor trustee, was ruled to answer the same. In the fourth amended complaint the plaintiff named Frank C. Rathje as successor trustee, and James A. Murphy and Frank McGovern as defendants. Frank C. Rathje as successor trustee filed an answer to the fourth amended complaint. James A. Murphy and Frank McGovern were defaulted for failure to file an appearance or answer.

In the fourth amended complaint it was charged that Frank C. Rathje, as successor trustee, was the owner of a certain piece of real estate located at 3439-47% West Madison street, Chicago, Illinois. This real estate was managed by Draper & Kramer, Inc., a real estate concern; that James A. Murphy, the tenant in possession of a part of the real estate, and Frank McGovern, the business partner, operated an establishment in the building located upon this real estate, wherein intoxicating liquors were sold; that these sales were knowingly permitted by the defendant Frank C. Rathje, as successor trustee, the owner of the real estate.

It was further charged in this fourth amended complaint that in June, 1934, Joseph O’Connor, son of the plaintiff, was killed in the above described establishment by one Richard Rogers; that at the time of the shooting Richard Rogers was intoxicated by consumption of liquor sold to him at that location.

It was further charged that Joseph' O’Connor was the sole support of the plaintiff and that she thereby became entitled to damages under the applicable provisions of the Dramshop Act of Illinois. (Ch. 43, par. 135, sec. 14, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 68.042].)

The defendant, Frank C. Rathje, as successor trustee, by answer, denied knowledge of the sale of intoxieating liquor upon these premises. He specifically denied that he knowingly permitted such sale. He set forth that the premises had been leased by the tenants in possession by written lease, which document contained an express provision prohibiting the sale of intoxicating liquor upon the premises. The jury returned a verdict against the defendants and assessed the plaintiff’s damages at $35,000. Appropriate motions for a new trial and in arrest of judgment were filed, but the trial court declined to grant a new trial, but reduced the verdict, with the consent of the plaintiff, to the sum of $20,000. Judgment was entered upon this decreased amount and this appeal followed.

From the facts as they appear in the record, A. Gr. Becker & Co., entered into an indenture of trust with the Foreman Trust and Savings Bank, as trustee. The trust indenture is in evidence. It contemplated the deposit of A. Gr. Becker & Co. with the trustee of $6,000,000. This money was to be invested in first mortgages on improved real estate in Chicago, Illinois. The indenture further provided for the issuance of certificates of beneficial interest in varying amounts for sale to the general public.

In January, 1932, a bill of complaint was filed charging the trustee with certain acts of misconduct. The bill soug’ht an accounting, removal of the trustee and the appointment of a successor. In July, 1933, the court appointed Frank C. Rathje as successor trustee. He was qualified and acting in such capacity in June, 1934, the date of the happening of the events complained of in the instant proceeding. Included among the assets of the trust was a first mortgage on the real estate at 3439-47% West Madison street, Chicago, Illinois, where the shooting occurred. This mortgage being in default, Rathje had instituted foreclosure proceedings. As trustee he bought the property at the foreclosure sale and on February 23, 1934, he received a master’s deed of conveyance made to him as successor trustee.

After the filing of the foreclosure proceeding the court appointed one Ferd Kramer, who was an associate of the firm of Draper & Kramer, Inc., one time defendants in this proceeding, as receiver for the property. He served in this capacity until the date of the master’s deed. In December, 1933 he leased a portion of the building situated on the premises to James A. Murphy, a defendant in this proceeding. This lease was reduced to writing and it contained a provision that no intoxicating liquors of any kind could be sold on the premises.

After the delivery of the master’s deed, Rathje appointed Draper & Kramer, Inc. as his agents to manage the property. Murphy continued to pay rent at the rate provided in the lease and receipts for the rental given him were signed by Draper & Kramer, Inc., agents for Frank C. Rathje, successor trustee. On March 6, 1934, Draper & Kramer, Inc. served Murphy with a notice of termination of tenancy. This notice was occasioned by a complaint received that a piano was being played in the establishment late at night. After service of this notice, rental was collected for the month of March, 1934. On May 1, 1934, they again served a similar notice of termination of tenancy. They had received rent for April in the interim. In the latter part of May, 1934 a fight occurred in the premises occupied by Murphy, and Ferd Kramer and Frank O. Rathje testified that this was the event which caused them to believe that alcoholic liquors were being sold on the premises. On June 1, 1934, a forcible entry and detainer proceeding was filed by Rathje against Murphy in the municipal court of Chicago. It was sought by this proceeding to dispossess Murphy of the premises in question. The bailiff of the municipal court was unable to serve Murphy, with either an original or an alias summons. On June 18, 1934 the requisite affidavit for service by publication was filed in the proceeding, the cause was continued until July, 1934, notice to be given to the defendant by posting- and mailing. This notice was given and Murphy, failing to appear, an order of eviction was entered ag’ainst Murphy.

The facts show that Richard Rogers killed Joseph O’Connor upon these premises about 1:00 a.m. June 20, 1934. Plaintiff’s witnesses McGovern, Smith, Kelly and Hasset testified that intoxicating liquors were being sold in the premises in question openly between February 23, 1934 and June 20, 1934. McGovern further testified that he had sold liquor to Narrow, the rent collector employed by Draper & Kramer, Inc. who had charge of this particular building between those dates. Narrow testified that he had never seen any intoxicating liquors in the tavern and was under the impression that only nonintoxicating- beer was sold there. The defendants Rathje and Ferd Kramer of Draper & Kramer, Inc. testified that they had no knowledge of the sale of intoxicating liquor in violation of the terms of the lease until the date of May 27, 1934, or shortly thereafter, when they learned of the fig'ht which had occurred in the premises, and conducted an investigation.

The evidence shows that Richard Rogers was intoxicated in these premises on June 19, 1934, and that he bought liquor therein. About one o ’clock in the morning of June 20, 1934, while intoxicated, he shot and killed Joseph O’Connor.

The defendant, McGovern, filed no appearance in the proceeding, nor any answer. He was examined under section 60 of the Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 184; Jones Ill. Stats. Ann. 104.060] as an adverse party. - - He admitted the sale of the liquor to Rogers, admitted his intoxication therefrom and admitted that he knew previous to that time that Rogers, was a violent individual when intoxicated.

Anne O’Connor, mother of the deceased, testified that her son earned $62.50 for every two weeks of work and that he was employed by the city of Chicago.' She stated that she handled the family’s finances; that she gave her son $5 a week for spending money and carfare and that he received, in addition, about $50 a year for clothing. She testified that her son had lived with her throughout his entire life, except for seven years, when he was in the Pontiac reformatory. She was 53 years of age at the time of the death of her son and he was 33.

The plaintiff states that with two exceptions the statement of facts set forth in defendant Rathje’s brief is substantially correct, but it is urged that the defendant erroneously states that the fourth amended complaint named Frank C. Rathje as successor trustee. The fourth amended complaint charged and named Frank C. Rathje, successor trustee. The plaintiff also calls to the attention of the court that the defendant states that in the complaint it is charged that Joseph O’Connor was the sole support of the plaintiff. The complaint merely alleged that Joseph O’Connor provided a livelihood for himself and the plaintiff and did not say he was the sole support of the plaintiff. Plaintiff further urges that the defendant Rathje claims that in the fourth amended complaint he is sued as “Successor Trustee.” That is not true. Plaintiff’s third amended complaint named Frank C. Rathje, “individually and as Successor Trustee.” A motion to strike was sustained and Frank C. Rathje was dismissed individually. A fourth amended complaint was then filed, describing Frank C. Rathje, not as successor trustee, but in the following words: “Frank C. Rathje, Successor Trustee.” This was merely a restatement of the cause of action against Rathje individually and in the name in which he held title to the real estate. No motion to strike this complaint was made and the defendant Rathje answered the same in the name, “Frank Rathje, Successor Trustee,” and not as suecessor trustee, thereby admitting the sufficiency of the complaint.

Briefly, the contention of the plaintiff is that the words, “Successor Trustee” following the defendant’s name in the complaint, are surplusage, and merely descriptive of the person.

Defendant’s reply to this contention is that paragraph (7) of the plaintiff’s fourth amended complaint is:

“That the name Frank C. Bathje, successor trustee, etc., is to be used hereafter in this complaint as an abbreviation for and to denote and identify Frank C. Bathje, successor trustee to the Foreman State Trust and Savings Bank, successor by consolidation to the Foreman Trust & Savings Bank, as trustee under a certain indenture of trust, dated as of August 1, 1927, between A. Gr. Becker & Company and Foreman Trust & Savings Bank, trustee, of Chicago, Illinois” and that Frank C. Bathje was sued as successor trustee to the Foreman-State Trust and Savings Bank, which in turn was successor by consolidation to the rights of the Foreman Trust and Savings Bank, etc. All that is required to indicate the fallacy of the claim of the appellee is the chronology of the title by which plaintiff elected to sue the defendant.

The defendant then calls the attention of the court to the fact that the trial court entered an order that Bathje, as an individual, be dismissed out of the lawsuit, and directed that a fourth amended complaint be filed, and it ordered Bathje “as successor trustee” to file an answer within 30 days from the date of the filing of the fourth amended complaint. Our attention has been called to the admission by the plaintiff in her brief and argument that Bathje, as an individual, was not a proper party to the suit, which the defendant quotes as follows:

“Frank C. Bathje, as an individual, was not the owner of the property. As an individual he had no authority over same. He could and did file suits for possession or for rent only in one name, and that was in the name of ‘Frank C. Eathje, Successor Trustee.’ . . . He owned the property only as Successor Trustee and, under the Dramshop Act, could be sued as owner only in the name in which he held title, and that was ‘Frank Eathje, Successor Trustee. ’ ” So, from the record in this case the question is whether the defendant is a party to the litigation as a trustee or as an individual. From the pleadings it does not seem that the defendant as an individual is a party thereto, because of the entry of the order of March 9, 1935, whereby the court sustained the motion of defendant Frank C. Eathje to be dismissed from the complaint individually, and denied his motion as successor trustee to strike said complaint.

The title to the property in question which Eathje received an order to take possession of, was as trustee to the Foreman Trust and Savings Bank as trustee under a certain indenture of trust dated August 1, 1927, to which we have heretofore called attention.

It is evident that the only title Eathje ever received by the appointment of the court was as successor trustee, and this is from the record as we have stated it. So far as Eathje’s being in the case as an individual when he filed his answer to the fourth amended complaint, it would seem far fetched to say under the facts that Eathje is a party to this litigation, as indicated by the plaintiff. So the question is whether Eathje can be held liable as a successor trustee for the damages sustained by the plaintiff.

One of the late expressions of the Supreme Court upon a like question is to be found in the case of Equitable Trust Co. v. Taylor, 330 Ill. 42. The court said: “A trustee is personally liable for torts committed by him or by his agents or servants in the performance of his duties, but he is not liable in his representative capacity, as the law will not allow trust property to be impaired through the negligence of the trustee or permit bim to create any new or additional liabilities against the trust-property. The trust estate can make no contract and commit no tort, and if a trustee binds himself for the benefit of the trust estate the contract is his personal contract. Though he describes himself as trustee he is personally liable for its breach, and a personal judgment is the only judgment which can be rendered against him. An action against a trustee in his representative capacity is unknown to a court of law, for the law takes no cognizance of the trust relation.”

It is to be noted from this decision of the Supreme Court that the law is that a trustee is only personally liable for breach of contract, and a personal judgment is the only judgment which can be rendered against him, and in the case just cited, the court calls attention to decisions that have a material bearing upon the question as to whether a trustee is individually or as a trustee liable for any acts that may affect the trust estate. The first authority on which the court relies in support of its opinion is the case of Johnson v. Leman, 131 Ill. 609, in which it is held that a trustee cannot create a lien on the trust estate, even by his contract, without express authority given by the instrument creating the trust. Then the case of Bradner Smith & Co. v. Williams, 178 Ill. 420, holding’ that an assignee for the benefit of creditors, though he continues the insolvent’s business by order of the court, is personally liable on contracts made by him for the estate in the absence of express contrary agreement, and this personal liability does not depend upon whether the charge would be a proper one against the fund or estate or whether he should be allowed reimbursement for the money paid.

In the case of Wahl v. Schmidt, 307 Ill. 331, a man by the name of Schmidt died, leaving an estate consisting of real and personal property, all of which he devised to three trustees to manage for a period of 15 years. The trustees took possession of the property and managed the same. A part of the property of the estate was a building on West Ontario street, in Chicago, which was leased by the trustees to the Crescent Paper Box Manufacturing Company. A water tank had been constructed on the roof of this building, and the support sustaining it gave way and it fell through the building, causing the death of one of the employees of the manufacturing company. An action on the case was instituted against the manufacturing company and the surviving trustees, and judgment was entered for $7,000. The judgment was against the owners of the building as trustees. The cause was appealed to the Appellate Court where the judgment was affirmed, and the Supreme Court denied certiorari. Certain of the beneficiaries of the estate filed bills for an accounting in the matter, which was a chancery proceeding*, and certain appeals had .been prayed to the circuit court from orders entered in the probate court. On motion, the chancery proceeding and the pending appeals were consolidated under title.of one of the bills for an accounting*. The consolidated case was referred to a master. While the cause was thus pending the holder of the judgment obtained against the trustee in the court of law filed an intervening petition setting* up the existence of the judgment and praying that the court direct that assets of the trust estate, sufficient to pay the judgment, be applied for that purpose. The trial court after a hearing found that the judgment obtained at law was a first lien on the trust assets. On appeal the Appellate Court reversed this decree. The sole remaining trustee, in his individual capacity, appealed to the Supreme Court for certiorari for the reason that the Appellate Court’s finding was that he was liable for payment of the judgment individually, and not as trustee. The court said:

“In a court of law a trustee having the legal title to real estate, together with the right of possession, is regarded as the owner of the property, having all the rights and subject to all the liabilities of ownership. (1 Perry on Trusts, sec. 321.) The duties of the trustee as owner make him personally liable for torts committed by bim or by the agents or servants in his employ. (Norling v. Allee, 13 N. Y. Supp. 791; Shepard v. Creamer, 160 Mass. 496; Belvin’s Exrs. v. French, 84 Va. 81; O’Malley v. Gerth, 79 N. J. L. 610; Louisville Trust Co. v. Morgan, 180 Ky. 609.) A trustee is not liable in his representative capacity for an injury caused by his negligence in the management of the property held in trust. (Parmenter v. Barstow, 22 R. I. 245.) That was an action brought against trustees, in their representative capacity, for an injury negligently caused by their servant engaged in chiseling stone on premises of which they held the legal title as trustees, to a person walking on the sidewalk. It was stated in that case that the law will not allow trust property to be impaired or dissipated through the negligence or improvidence of trustees, nor will it permit them to create any new or additional liabilities against the same. The beneficial interest thereof belongs to the ceshds and it must be held intact for them. So it was held that trustees having the title to real estate were not liable in their representative capacity to persons rightfully on the premises for injuries received on account of the negligence of the trustees in permitting the premises to be out of repair. (Keating v. Stevenson, 21 App. Div. 604.) Trustees are not liable for injuries to a person on a sidewalk caused by the negligence of the trustees in regard to the repair of abutting premises, (Norling v. Allee, supra,) or for negligence in keeping the sidewalk in repair. Moniot v. Jackson, 40 Misc. 197.”

In the consideration of the case this court has reached the conclusion that defendant Frank C. Rathje is not liable as successor in trust of the estate of the beneficiaries, and for that reason, in applying the rules of law that have been established by the Supreme Court, the judgment as to Frank C. Rathje, successor in trust, must be reversed.

Other objections have been called to our attention, but in view of the court’s conclusion it will not be necessary to consider them.

Judgment for the plaintiff against Frank C. Rathje, as successor in trust, is reversed.

Judgment reversed.

Hall, P. J., and Denis E. Sullivan, J., concur.


author: Mr, Justice Hebel

text:
    Thrift, Incorporated, Appellee, v. State Bank and Trust Company et al., Appellants.
    Gen. No. 40,311.

      Opinion filed February 1, 1939.
    McNab, Holmes & Long, of Chicago, for appellants; F. Reed Dickerson and Albert S. Long, of Chicago, of counsel.
    Max Murdock, of Chicago, for appellee.
   Mr, Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendants from a judgment entered by the court for $2,010.60 in an action broug'ht by the plaintiff based upon the breach of a certain contract in writing under which the defendants are claimed to have obligated themselves to purchase, for the school year 193¿H935, certain supplies and services to be furnished by the plaintiff in pursuance of a plan for school savings in the city of Evanston. The case was tried before the court without a jury, and the court found the issues for the plaintiff and entered judgment for the amount appealed from by the defendants.

The original contract was signed by the State Bank & Trust Company, City National Bank of Evanston, Evanston Trust & Savings Bank .and the Central State Savings Bank of Evanston. ' The First National Bank and Trust Company of Evanston has succeeded to the' business of the City National Bank of Evanston and. to its position as participant in the transactions sued upon, and it has functioned under the alleged contract with the plaintiff substantially as if it were the City National Bank of Evanston. The Central State Savings Bank of Evanston is no longer in existence.

The alleged contract, which was first executed on June 14, 1922, is in the form of a printed letter, prepared by and addressed to the plaintiff by the defendants, in which the latter request the preparation and delivery of supplies and the installation of the plaintiff’s school banking plan in the public schools of Evanston. Such installation was to cover a minimum period of 3 years, thereafter to continue indefinitely until canceled by the defendants during the month of May. The plan was for the purpose of introducing a savings system by representatives of the plaintiff, an explanation of its operation to school principals and teachers, talks to students by rooms, lectures in high schools and junior high schools, the sending of letters of explanation through students to parents, the conducting of student contests, supervision of the opening and handling of student accounts on the first banking day, etc. In return the defendants promise to pay $1,072.80 per 5,364 students per year, that is, 20 cents per pupil per year, “so long as the system remains in operation, ’ ’ the annual payments becoming due on successive anniversaries of the date of installation.

Paragraphs 7 and 8 of the contract letter provide as follows:

“7. This contract may be cancelled by us by giving notice to that effect to Thrift, Incorporated, during the month of May preceding the 3rd or any subsequent anniversary of the date of installation, such cancellation to take effect only when this system shall have been in operation for 3 years from date of installation. . . .

“8. This order is unconditional except as noted hereon, is not subject to cancellation and shall be binding upon Thrift, Incorporated, when accepted in writing by them. ’ ’

Savings deposits were accepted on a schoolroom basis by teachers on behalf of the banks. The children were given pass books and urged to make weekly deposits. The entry in the pass book in each case was made by the teacher. At the same time a carbonized duplicate deposit slip was made and later turned over to the principal, together with the money received. At the end of the day both money and deposit slips were collected by messengers from the respective banks. Under the arrangement, the banks had little to do with determining either the general form or the details of the system, although their suggestions were sometimes followed, sometimes not. The final decision on proposed changes appears to have been the plaintiff’s only. Plaintiff took care of the various printed forms and posters, as well as the Thrift Almanac, a magazine issued peridioeally. These were all handled and paid for by the plaintiff. The printing orders for the pass books, which were stamped with the names of the respective banks and numbered consecutively, were customarily placed with various printers early in June and requisitions were made against these orders to meet the needs of each bank.

Pursuant to the printed request of the defendants, the plaintiff prepared and delivered supplies and installed the school banking plan in the public schools of Evanston on September 15, 1922, and the parties continued under this general arrangement until April 14, 1933, when the defendants wrote to the plaintiff that “. . .it was decided to discontinue your service in connection with the school savings plan in the Evans-ton schools.” Upon further consideration, the defendants wrote again on June 12,1933, “ . . .we now wish to reinstate the contract on condition that the rate per pupil is to be reduced for the coming year from twenty cents per pupil to fourteen cents per pupil. If this is acceptable, please acknowledge same and oblige.” Upon receipt of this letter the plaintiff replied under date of June 13, 1933, “We acknowledge with appreciation your letter of June 12, reinstating your School savings contract on terms which are acceptable to us.”

This savings plan was continued for the ensuing year, but finding the system still too costly, the banks wrote on June 12,1934, “ . . .it was decided that the Evanston Banks would discontinue school savings at the close of the present school year.” Further overtures by the plaintiff were cut short when on July 14, 1934, the defendants wrote, “ . . . the Evanston Banks met yesterday and ratified their former action of discontinuing your system of school savings. The action was unanimous and the matter is closed and we are not willing to discuss it further.”

It further appears from the evidence introduced by the parties that the plaintiff was engaged in the business of operating throughout the middle west and the south and the east a well established system by which it was serving about 500 banks with supplies and service of the same character as it rendered to the defendant banks in Evanston under this contract; that the plaintiff provided a staff of travelling* representatives who visited all of the communities periodically, conferred with teachers, held faculty meetings, made talks to the children in the school rooms, launched and conducted campaigns and contests to inspire and maintain interest and co-operation of school children and teachers in the plan.

The plaintiff suggests that the defendants’ appeal must be dismissed, not having been perfected within 90 days after the judgment appealed from. It appears from the record that judgment was entered on January 17,1938. The notice of appeal was filed and served on May 4, 1938, more than 90 days after entry of the judgment. Plaintiff suggests that under section 76 of the Civil Practice Act (Ill. Rev. Stat. 1937, ch. 110, § 200, [Jones Ill. Stats. Ann. 104.076]), appellate jurisdiction had expired unless something can be done to toll the statute.

The reply of the defendants is that on January 26, 1938, the defendants filed what is designated as a motion for a new trial, which was considered by the court after argument, and on February 9, 1938 the motion for a new trial was denied.

It does appear from the record that the plaintiff, by attorney, made the statement in court that it would not stand on a technical objection. However, the proper practice to have been taken by the plaintiff in this matter was a motion to dismiss the appeal. The Supreme Court in passing upon a like matter in the case of Cincinnati, I. & W. Ry. Co. v. People ex rel. Moffett, 205 Ill. 538, said:

“As to the second proposition, the record shows that appellant deposited the sum of $510.18 with the county collector, in compliance with the statute, for the purposes of the appeal. But if that were not so, the objection comes too late. No motion was made to dismiss the appeal, but appellee joined in error and briefs were filed by both parties, and the case was submitted for decision on the errors assigned. The question whether the appeal was regularly taken does not arise on such submission, and it could only be presented by a motion to dismiss the appeal. Wabash Railroad Co. v. People, 196 Ill. 606.’’ In Wabash R. Co. v. People ex rel. Funk, 196 Ill. 606, the court made this statement:

“It is objected by the appellee that the appeal in this case was improperly allowed. No motion was made to dismiss the appeal, briefs were filed by both parties and the case submitted to the court for decision upon the errors assigned. The objection comes too late.” So that the plaintiff having failed to make a motion to dismiss the appeal and having submitted the cause for this court’s decision upon the merits, we shall consider the case upon the suggestions for relief other than the question of dismissal, which we have concluded is not properly before this court.

The defendants in their brief contend that the plaintiff cannot recover in this suit because the alleged contract was both ultra vires and in violation of the banking laws of this State, and call our attention to paragraph 9, sec. 9, ch. 16%, entitled, “Banks” (Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 10.09]) which provides :

“ . . .No bank shall establish or maintain more than one banking house, or receive deposits, or pay checks at any other place than such banking house, and no bank shall establish or maintain in this or any other state or country any branch bank, nor shall it establish or maintain in this state any branch office or additional office or agency for the purpose of conducting any of its business.”

It does appear that under the provisions of plaintiff’s contract the plan was for the purpose of introducing a savings system by representatives of the plaintiff, an explanation of its operation to school principals and teachers, talks to students by rooms, lectures in high schools and junior high schools, the sending of letters of explanation through students to parents, the conducting of students contests, supervision of the opening and handling of student accounts on the first banking day, etc., and in pursuance of the plan it appears from the record that deposits by the children were collected in the schoolroom and handled on a schoolroom basis; that is, the deposits were brought to the teacher by the children and entered in a pass book which had been issued to them by the teacher, and then the money and a duplicate deposit slip were turned over to the principal of the school, the pass book returned to the child and the money collected by messengers from the banks at the end of the day.

The real question is whether the banks were doing-business according* to the plan of the plaintiff in violation of the provision of the statute which we have set forth in this opinion. It does appear from the facts, as well as from this contract, that a place for the deposit of money was fixed in the schools, pass books issued, and the teacher received deposits, entered them in the pass books in accordance with the provisions of the contract, and delivered the money to messengers of the banks.

It seems clear that the banks were maintaining an agency for the conduct of their business, not alone an agency to do business, but an agency to receive deposits of money made by the children which had been credited in the pass books in the schoolrooms, and that this contract of the plaintiff, which seeks to establish the plan outlined in the agreement, is in violation of that part of the statute which provides: “No bank shall . . . receive deposits ... at any other place than such banking house, and no bank shall establish or maintain . . . any . . . additional . . . agency for the purpose of conducting* any of its business.”

A pertinent statement is made by our Supreme Court in the case of Continental Ill. Nat. Bank & Trust Co. v. Peoples Trust & Savings Bank, 366 Ill. 366, where the court considered the same question, in a measure, as is involved in this particular lawsuit. The court said:

“One dealing* with a bank is chargeable with notice of its powers and limitations. We have often held that the banking* business is so impressed with a public interest that it is subject to strict regulatory legislation. Private banking is forbidden by law. National and state banks are creatures of the law having no powers but those which the law has conferred upon them. The powers vested in a bank are only such as are expressly granted and as are necessarily implied from the specific grant. Every power not clearly granted is withheld. Enumeration of powers granted implies exclusion of all others, and any ambiguity in the terms of a grant operates against the corporation and in favor of the public. If a power claimed is withheld, the withholding is to be regarded as a prohibition against its exercise. (Peter v. Wiersema State Bank, 361 Ill. 75; Knass v. Madison & Kedzie Bank, 354 id. 554.)”

In dealing with these banks the plaintiff of course was chargeable with notice of such powers as they had, and from an examination of the particular section of the banking law which we have quoted, it seems clear that these banks were without power to transact and conduct the business provided for in the plan between the plaintiff and the defendant banks. For the reasons we have stated, we believe the contract is in violation of the provision of the statute providing for the transaction of the business by the banks, and therefore is not an enforceable one.

There is also the question of enforceability of the contract in question upon the ground that the contract sued upon was unilateral, and not enforceable as an executory contract of purchase and sale. It is true that the contract in this case was signed by the parties, but this fact of itself does not make the contract one of mutuality.

After passing upon the enforceability of the contract we have reached the conclusion, as stated in the opinion, that the contract between the defendant banks and the plaintiff is not a legal contract that can be enforced, and for that reason it will not be necessary to take up the other questions regarding the particular contract questioned.

For the reasons stated, the judgment is reversed.

Judgment reversed.

Hall, P. J., and Denis E. Sullivan, J., concur.