author: Mr. Presiding Justice Shurtlbff

text:
    The National Bank of Decatur, Appellee, v. City of Gibson, Appellant.
    Gen. No. 8,463.

      Opinion filed January 26, 1931.
    Rehearing denied April 10, 1931.
    O. B. Middleton and Sibyl H. Middleton, for appellant.
    Bedmon & Bedmon and C. M. Swanson, for appellee.
   Mr. Presiding Justice Shurtlbff

delivered tlie opinion of the court.

On July 14, 1928, appellee, the National Bank of Decatur, secured a judgment against appellant, City of Gribson, for $2,413.06, in the circuit court of Ford county.

On March 19, 1930, appellee filed its petition in said court praying a writ of mandamus directed to appellant and its mayor and counsel, commanding them to pay to appellee its said judgment with interest and costs, out of moneys in appellant’s treasury available for the purpose of paying judgments or from any moneys to be collected by appellant by virtue of its tax levy ordinance theretofore passed for the purpose of paying judgments against said city, but that if such money so collected has been expended for other purposes that appellee be paid out of moneys in appellant’s general fund and “that said City shall take the necessary steps to pass a proper Appropriation and Tax Levy Ordinance to pay in full said judgment, with interest and costs thereon.”

Appellee’s petition, briefly, alleges: First, the recovery of said judgment; second, incorporation of appellant under Cities and Villages Act, Cahill’s St. ch. 24, jf 1 et seq. and that its business is transacted by mayor and eight aldermen; third, authority of appellant to pass annual appropriation ordinance; fourth, power and duty of appellant to levy taxes, the manner thereof and the rate, which said rate exclusive of bonded indebtedness and interest thereon, pension funds, public library, municipal tubercular sanitarium “for a period of three years beginning with the year 1929 shall not exceed the rate of 1.07% per centum in cities having a population of less than 150,000”; fifth, that appellant on July 24, 1928, and on August 28, 1928, passed its respective appropriation and levy ordinances setting them out in haec verba; sixth, that a certified copy of said levy ordinance was filed with the clerk of the county court and the necessary steps taken to collect the taxes; seventh, that appellant collected thereunder for the purpose of paying judgments the sum of to wit, about $5,000; eighth, that on July 23, 1929, and on September 10, 1929, appellant passed its respective appropriation and levy ordinances neither being set out but alleging that no dollars were levied for the purpose of paying judgments ; ninth, that said judgment is unpaid and that appellee has “frequently requested the said City of Gribson ‘so to do’ ” and that appellant has refused and neglected to pay said judgment; tenth, on information and belief that no part of taxes collected by appellant for the purpose of paying judgments has been applied on appellee’s or any other judgment.

In the appropriation ordinance of July 24, 1928, the following clauses were included: For the payment of any judgments that may be of record now or may in the future be entered against said city in any court, the sum of $15,000 to be known as the judgment fund; that all unexpended balances in said respective funds for the last preceding fiscal year are hereby reappropriated and added to the respective funds hereinabove appropriated for the present and fiscal year, and the tax levy ordinances of August 28, 1928, included the item: For the payment of judgment against said city $10,000.

The petition further contained the following allegations :

Petitioner further alleges and represents upon information and belief that the City of Gribson did by virtue of such annual appropriation bill and annual tax levying ordinance collect of the amount appropriated and levied for the payment of judgments against said City, the sum of, to wit, about $5,000, the exact amount of said sum collected being unknown to petitioner, and upon such information and belief so states the facts to be.

Petitioner further alleges and represents that the said City of Gribson did afterwards on, to wit, the 23rd day of July, A. D. 1929, pass its annual appropriation ordinance, and that among other items the said City of Gribson did in and by said ordinance appropriate for the payment of any judgments that may be of record against said city the sum of $5,000, to'be known as the judgment fund.

Petitioner further represents that the said City of. Gribson did afterwards also on the 10th day of September, A. D. 1929, pass its annual tax levying ordinance in and by which said ordinance said City of Gribson did levy a tax of no dollars for the payment of judgments against said City of Gribson, and that a certified copy of said ordinance was filed with the clerk of the said county of Ford, in the manner provided by law, and that the necessary steps were taken to collect the taxes assessed by said ordinance.

To this petition appellant filed a general demurrer, which was overruled, and appellant having elected to stand by its demurrer, the writ of mandamus was ordered and appellant prayed this appeal.

It is contended that the petition does not properly and sufficiently set out the passage of the ordinances, the votes cast for them or that they or either of them were in any manner published. The petition alleges that they were “passed.” This is an allegation of an ultimate fact and not a conclusion of law, and the allegation covers all of the steps necessary to be taken to properly pass and render the ordinance effective. (People v. Coffin, 279 Ill. 401, 406; People v. Armstrong, 196 Ill. App. 199.)

Appellant points out the defect that the petition recites that the tax levy ordinance was filed, by a certified copy, with the clerk of the county court when it should have been filed with the county clerk. The county clerk and the clerk of the county court are one and the same person. If the ordinance was filed with the clerk of the county court, it was also filed with the county clerk. Section one of chapter 131 on the construction of statutes, provides that “the words ‘county clerk’ shall be held to include clerk of the county court, and the words ‘clerk of the county court’ to include ‘county clerk’.” Cahill’s St. ch. 131, If 1. There is nothing to the contention.

Appellant also says in its argument that the general rule is that before applying for a mandamus the petitioner should make an express and distinct demand or request of the defendant to perform the duty or act required, and cites as authority on that proposition People v. Mt. Morris, 137 Ill. 576. We have examined the case cited and the rule is so stated in that case.

In the Mt. Morris case no demand or request of any kind had been made before filing the petition, so far as was shown by the petition, and the court held that before applying for a mandamus the petitioner should make an express demand or request of the defendant to perform the duty or act required, and that there must be a refusal by the defendant to comply with such demand, either in direct terms, or by conduct by which a refusal can be conclusively implied.

However, appellee contends and points to Langan v. Drainage Dist., 239 Ill. 430, where exactly the same question was raised. In that case a demurrer, both general and special, to the petition was filed, and at page 439 of the opinion the court say:

“Appellants contend that the averment that petitioner requested the drainage commissioners to deepen and enlarge the ditches is not a sufficient averment of a demand. We think otherwise. The averment of demand in the petition in Kreiling v. Nortrup, supra, was in identically the same language as the averment of demand in this case and it was treated as sufficient. From the answer filed in Peotone Drainage District v. Adams, supra, it would seem the allegation of demand in that case was the same as in this.”

It is the opinion of this court that the allegation in the petition that no part of appellee’s judgment had been paid, although petitioner has frequently requested the said City of Gibson so to do, is a sufficient demand under the authority above quoted.

It is next contended in support of the demurrer that the allegations of the petition as to appellant having moneys on hand sufficient to pay the judgment are made upon information and belief and are insufficient. The exact language of the petition is: “Petitioner alleges upon information and belief that the City of Gibson did by virtue of . . . collect of the amount appropriated and levied for the payment of judgments against said City, the sum of, to wit, about $5,000, the exact amount of said sum collected being unknown to petitioner, and upon such information so states the facts to be.”

The petition further states upon information and belief that no part of the taxes collected by said City of Gibson as aforesaid, for the purpose of paying judgments against said City, has been paid upon or applied to the payment of the judgment of your petitioner, or any other judgment against said City of Gibson, and upon such information and belief so states the facts to be. Appellant insists that the exact fact should be alleged; that the books are open and such facts do not need to be stated “upon information and belief.” The objection at first blush appears plausible, but upon reflection it is not so simple. No one knows what the records of the city treasurer or other public officer show except the official in charge. That statement of the rule is too broad, because the knowledge and statement of the official as to a record is the merest hearsay and cannot be depended upon. The only way one can speak with knowledge as to a public record is under section 14 of chapter 51 of the Revised Statutes — the Evidence Act, Cahill’s St. ch. 51, H14. This section provides: “The papers, entries, records and ordinances, or parts thereof, of any city, village, town or county, may be proved by a copy thereof, certified under the hand of the clerk or the keeper thereof, and the corporate seal, if there be any; if not, under his hand and private seal.” In Village of Brookfield v. Ricker, 295 Ill. 316, 319, it is held: “It may be noted in this connection that some of the proof with reference to the action of the county authorities as to the improvement of Ogden avenue through the village of Brookfield was not made by the records of the county board or the county highway commissioners. The action of the county board of highway commissioners or other public authorities of the county or State can only be properly shown by the records kept by those authorities. People v. Chicago & Alton Railroad Co., 273 Ill. 452, and authorities cited; see also, Lindblad v. Town of Normal, 224 Ill. 362, and authorities cited.”

Even the book in which the record is kept is known only to the official in charge and it results, if the objection is well taken, that the pleader, to set out a proper petition, must submit his evidence in the petition. Much convenience in this line has been afforded the bar and public as to ordinances by the statute permitting the publication of ordinances with a certificate, and the late act requiring courts to take judicial notice of all ordinances of cities and villages, not yet of complete judicial determination. But there are no similar, liberal rules as to determining the records of city treasurers, and in all such cases the pleader must either set out the evidence upon which he rests his cause, or, of necessity, whatever language he uses must be based upon information and belief. In this connection we must understand that the statement of the person holding the official position is not the statement of the officer in any official capacity, and if not under oath or under certificate is entitled to no judicial reliance.

Appellant in this cause is resting its demurrer upon the allegations in the petition that are in the nature of negative averments. Appellant insists that the petition does not show but that appellee did not pass said ordinances, did not collect $5,000 under the tax levy ordinance to apply upon said judgment and did not pay out said tax moneys upon other judgments, so that it has no moneys or funds to apply upon appellee’s judgment, etc. The rule of evidence in this respect is fully laid down in Abhau v. Grassie, 262 Ill. 636, 638, as follows: “The general rule is that the burden of proof rests upon the one who substantially asserts the affirmative of the issue,- — that is, upon the party who would be defeated if no evidence at all were offered. (Stephens v. St. Louis Union Trust Co., 260 Ill. 364; 1 Greenleaf on Evidence, — 16th ed. — sec. 74.) The burden of proof does not depend upon the form of the proposition. The weight of authority is, that whoever asserts a claim or defense which depends upon a negative must establish the truth of the allegation (Jones on Evidence, — 2d ed.— sec. 179), for that particular fact is essential to his case. (2 Chamberlyne on the law of Evidence, sec. 984.) It is, however, sometimes stated, that where the subject matter of a negative averment lies peculiarly within the knowledge of the other, the averment is taken as true unless it is disproved by that other party. (1 Greenleaf on Evidence, —16th ed. — sec. 79; Kettles v. People, 221 Ill. 221.) It is not easy to lay down a general rule by which it may be readily determined upon which party the burden of proof will lie when a negative is averred in the pleading. Each case depends upon its own peculiar circumstances. ‘Courts must apply practical common sense in determining the question. When the means of proving the fact are equally within the control of each party, then the burthen of proof is upon the party averring the negative; but when the opposite party must, from the nature' of the case, be in possession of full and plenary proof to disprove the negative averment, and the other party is not in possession of such proof, then it is manifestly just and reasonable that the party thus in the possession of the proof should be required to adduce it,’ or it will be presumed that it does not exist. Great Western Railroad Co. v. Bacon, 30 Ill. 347. See 4 Wigmore on Evidence, sec. 2486.”

The same rule is laid down in Great Western R. Co. v. Bacon, 30 Ill. 347, in Williams v. People, 121 Ill. 84, 90, and in many other cases. We cannot hold that petitioner is obliged to plead its evidence, and we must therefore hold that the allegations of the petition were sufficient. It is argued by appellant that even though there were sufficient allegations as to the collection of the tax it did not follow that the funds were in the treasury at this time. But under section four of article eight of chapter 24 of the Revised Statutes, Cahill’s St. eh. 24, ¶ 118, it was the duty of the City of Gibson and its treasurer, when the tax collections had been made for that year, to determine what proportion of the total amount of taxes collected shall be applicable to the payment of such particular debt, appropriation or liability, and that it was the duty of the city treasurer to set apart such proportion of the taxes collected and paid to him for the payment of such particular debt, appropriation or liability, and to not disburse the same for any other purpose until such debt, appropriation or liability shall have been discharged.

In view of what we have said and the authority of People ex rel. Com’rs. of Drain. Dist. v. Schwarts, 244 Ill. App. 137, we are of the opinion that all of the objections pointed out are mere matters of form, if at all defective, and cannot be reached by a general demurrer.

The averment in the petition that petitioner frequently requested the City of Gibson to pay its judgment is a sufficient demand. (Langan v. Drainage Dist., 239 Ill. 430, 439; Kreiling v. Nortrup, 215 Ill. 195.)

Finding no error in the judgment of the circuit court of Ford county, the same is affirmed.

Affirmed,


source: Caselaw Access Project

author: Mr. Presiding Justice Shurtlefe

license: Public Domain

text:
    Carson Pirie Scott & Company, Appellant, v. W. J. Parrett et al., Executors of the Last Will and Testament of John H. Harrison, Deceased, Appellees.
    Gen. No. 8,474.
    Opinion filed January 26, 1931.
    Rehearing denied April 7, 1931.
    Whitman, Miller & Coon and Green & Palmer, for appellant; Henry G. Miller, William G. Palmer and Oris Barth, of counsel.
    Acton, Acton & Snyder • and Gunn, Penwell & Bindley,, for appellees; William M. Acton and Walter T. Gunn, of counsel.
   Mr. Presiding Justice Shurtlefe

delivered the opinion of the court.

This case presents the question as to whether or not Carson Pirie Scott & Company, appellant, as one of the parties to be benefited thereby, may maintain a suit against the appellees as executors under the will of John H. Harrison, deceased, on a certain contract, dated November 24, 1926, made by John H. Harrison as one of the parties of the first part, and Caldwell & Company, a Tennessee corporation, as party of the second part.

Appellant brought suit in assumpsit on December 30, 1927, in the circuit court of Vermilion county against John H. Harrison and M. J. Wolford for the sum of $5,000, and on April 30, 1928, filed its declaration in the case.

At the May, 1928, term of said circuit court, Harrison and Wolford filed their general demurrer to the declaration and to each count thereof. Subsequently, the defendant Wolford died, and on December 27, 1929, suggestion of his death was made and an order entered that the cause proceed against the surviving defendant, Harrison. Thereafter the surviving defendant, John H. Harrison, died, and on July 5, 1930, an order of court was entered substituting W. J. Parrett, Eoy O. West and Greorge T. Buckingham, executors of the last will and testament of John H. Harrison, deceased, as parties defendant. Such substitution being made, appellant was given leave to amend the first and third counts of the declaration and was also given leave to withdraw the second count of the declaration. Upon the withdrawal of the second count and the filing of the amendments to the first and third counts of the declaration, the defendants— appellees — as executors, entered their appearance as defendants and an order was entered that the demurrer originally filed stand as the demurrer of defendants as executors to the first and third counts of the declaration as amended. By order entered on July 5, 1930, the demurrer to the amended first and third counts of the declaration as amended was sustained. The appellant elected to stand by its declaration as amended, the court entered judgment in bar of action and for costs and thereupon the appellant prayed and was allowed an appeal to this court.

The allegations contained in the first count of the declaration and in the amendment to that count were in substance as follows:

On November 24, 1925, the appellees’ testator, John H. Harrison, one of the original defendants, was the president of, and the other original defendant, M. J. Wolford, was the treasurer of, the Danville Hotel Company, an Illinois corporation, which was organized for the purpose of and was then engaged in the construction and furnishing of a hotel building in the City of Danville, known as the Hotel Wolford. The hotel company, in order to secure moneys and funds with which to pay for the construction of the hotel building, had issued its bonds in the sum of $700,000 and under date of February 13, 1926, entered into an agreement with Caldwell & Company, a Tennessee corporation, to underwrite and dispose of said bonds in order that the hotel company might receive the proceeds of the bonds for use in constructing the. hotel. In order to secure the payment of its $700,000 in bonds, the hotel company had executed and delivered its certain real estate mortgage or deed of trust covering and conveying the hotel building and the premise's on which it was situated, and also its chattel mortgage covering and conveying the furniture, furnishings and all other chattels located and to be located in the hotel building, except chattels held for sale or consumable in their use, to Liberty Central Trust Company and one Miller, as trustees. In the real estate mortgage or deed of trust, the hotel company covenanted and agreed that it would promptly furnish all moneys necessary in addition to and prior to the use of the proceeds of said bond obligations to complete and furnish said Hotel Wolford and to have the same promptly completed and furnished.

On November 24, 1926, the hotel company, not having on hand or in its possession moneys and funds sufficient to furnish the hotel in accordance with the requirements of the real estate mortgage or deed of trust, Caldwell & Company, which was under the underwriting agreement custodian of the proceeds of the bonds and at that time held in its custody certain of such proceeds, refused to make any further disbursements of the proceeds of said bond obligations unless and until the hotel company had in its hand sufficient moneys to furnish said hotel building, or unless and until assurances should be given to Caldwell & Company that the furniture, furnishings and equipment for the hotel would be installed free of liens and incumbrances. Thereupon on November 24, 1926, by reason of the premises, and for a good and valuable consideration, Wolford and Harrison, as parties of the first part, entered into an agreement with Caldwell & Company as party of the second part, bearing that date, this agreement being set forth in full in the first count of the declaration. It is recited in this agreement that Harrison is the president and Wolford the treasurer of and interested in the hotel company, and recitals as to the making of the underwriting agreement and of the execution of the mortgage or deed of trust and the chattel mortgage are contained therein. The agreement further recites that the mortgage or deed of trust given to secure the bonds contained the following provision:

“Said owner further covenants and agrees that it will promptly furnish all moneys necessary, in addition to, and prior to, the use of the proceeds of this bond issue, to complete and furnish the Wolford Hotel, now being erected on said property, in accordance with the plans and specifications heretofore made by Hall, Lawrence, Rippel & Ratcliffe, architects, and that it will have same promptly completed and furnished, without interruption or delay in the work, and immediately upon completion, that it will commence, or have commenced, the operation of said Hotel.”

The agreement further recited that the hotel company had on hand moneys estimated as sufficient, in addition to the proceeds of the bonds, to complete the hotel building, but did not have on hand moneys sufficient to furnish the hotel, and recited also that the underwriter, Caldwell & Company, was custodian of the proceeds of the bond issue and had been advised not to make further disbursements of the proceeds of said bonds until the hotel company had on hand sufficient moneys to furnish the hotel building or assurance was given that the furnishings would be installed free of liens. The acquiescence of Wolford and Harrison in the position taken by Caldwell & Company is recited in the agreement, in which they prom-ts ed, covenanted and agreed as follows:

“1. That the parties of the first part do hereby guarantee the installation in the Wolford Hotel at Dahville, Illinois, on or before December 15, 1926, by Arthur A. Marer & Company of Chicago, Illinois, of the furniture, of the price and value of $115,000.00, mentioned in contract of date October 9th, 1926, and exhibit thereto, between the said Arthur A. Marer & Company, which written contract and exhibit are hereby referred to and made a part hereof, agreeing, if the Hotel Company does not promptly pay, to pay for said Hotel Company all of the payments therein required to be made before installation is completed, when said payments are due.

“2. That the parties of the first part will also have installed on or before December 15, 1926, in the Wolford Hotel, free of lien and subject to the lien of the chattel mortgage of the Liberty Central Trust Company and Miller, Trustees under the mortgage securing the aforesaid bond issue, the following character of furniture or equipment by the following parties, or by other parties satisfactory to the party of the second part and in approximately the following amounts:

China — Arthur Schiller & Sons, 50 per cent cash," balance six months................$ 3007.90

Silver — Rogers Bros., International Silver Company ............................. 2488.79

Kitchen Equipment — Wm. F. Traub Range Company ............................. 15680.69

Waste Baskets — Marshall Field Company.. 180.00

Linens — Carson Pirie Scott Company— Marshall Field Company............... 6763.25

Refrigerators — Dry-Kold Refrigerator Company ................................. 5800.00

Portrait — Arvid Nyholm.................. 1500.00

Drapes — Albert Pick..................... 10000.00

Shades — National Window Shade Company. 500.00

Kitchen Utensils — Wm, F. Traub Range Company ............................. 2000.00

Additional Kitchen Utensils & Supplies.... 1000.00

Office Equipment, Front Office Equipment and Miscellaneous Supplies............. 6080.00

Total ............$55000.00

“The parties of the first part will promptly pay for the above characters of furnishings and equipment when payments are due, if the Hotel Company does not do so, so that the installation of same promptly and free of lien is assured.”

The first count further alleged that by and under the terms and provisions of the agreement of November 24, 1926, Wolford and Harrison promised and agreed that they would have installed in the Hotel Wolford furniture, furnishings and equipment for said hotel building so that the same would be subject to the lien of the chattel mortgage and particularly promised and agreed that they would have installed in said hotel by the appellant and by Marshall Field & Company, or by other parties satisfactory to Caldwell & Company, furnishings and equipment as follows: By the appellant and Marshall Field & Company, or either of them, — Linen goods or linens in approximately the amount of $6,763.25, and in said agreement Wolford and Harrison promised and agreed that they would promptly pay for the furnishings and equipment so to be installed when the payment therefor became due, if the hotel company did not pay therefor.

It is further alleged that at the request of the hotel company, the appellant furnished, sold and delivered to it for installation in the hotel, sheets, towels, toweling, napkins, table tops, table cloths, mattress pads, pillow cases, bath mats, table pads, etc., all commonly known and designated as “linens” in the amount of and at the purchase price of $3,266.20, and Marshall Field & Company furnished, sold and delivered to the hotel company for installation in the hotel building, linens to the amount of and at the purchase price of $3,121, and all of the articles so furnished, sold and delivered by the appellant were installed in the hotel building and accepted by the hotel company on the 15th day of December, 1926, the terms of the sale being 30 days net, and payment for the same became due on the 15th day of January, 1927.

The first count further alleges that the Danville Hotel Company did not pay to the appellant nor to anyone for it, the amount of the purchase price of the linens so furnished, sold and delivered by appellant to the hotel company, or any part thereof, and by reason thereof Harris on and Wolford on January 15, 1927, became obligated and liable to pay the appellant the amount of the purchase price for the linens so furnished, sold and delivered by it according to the tenor and effect of the written agreement dated November 24, 1926, entered into by them with Caldwell & Company and for interest on that amount from the time payment became due.

It is further alleged in the amendment to the first count of the declaration that since the commencement of the suit and the filing of the original declaration, M. J. Wolford, one of the original defendants, died, and that the cause was ordered to proceed against the surviving defendant, John H. Harrison, and that thereafter John H. Harrison departed this life testate and that his last will and testament was duly admitted to probate in the probate court of Vermilion county, and that W. J. Parrett, Boy O. West and George T. Buckingham qualified as executors of said will and letters testamentary were issued to them, and upon the death of John H. Harrison being suggested to the court, the executors of his last will and testament were substituted as defendants, and that upon the death of Wolford, Harrison became obligated and liable to pay to appellant the amount of the purchase price of the articles furnished, sold and delivered by appellant to the hotel company according to the tenor and effect of the written agreement of November 24, 1926, entered into by Wolford and Harrison and Caldwell & Company, and for interest on that amount from the time payment became due; and that upon the death of Harrison, the appellees, as executors of his last will and testament, became obligated and liable to make the payment out of the assets of the estate of said Harrison, and although the time for payment of the purchase price for the articles sold by appellant has long since elapsed before the bringing of this suit, neither Wolford nor Harrison, nor either of them, paid to the appellant the amount of the purchase price or any part thereof, but refused so to do, and since the bringing of this suit neither Wolford nor Harrison, nor W. J. Parrett, Boy O. West or George T. Buckingham, executors, nor any or either of them, have paid to the appellant the amount of the purchase price or any part thereof, all to the damage of the appellant in the sum of five thousand dollars.

The allegations contained in the third count of the declaration and in the amendment to that count are in substance the same as the allegations contained in the first count of the declaration and in the amendment thereto, the only difference between the two counts being that the order of pleading is somewhat different.

Appellant’s contention is that the promise made by Harrison and Wolford, in their contract with Caldwell ■ & Company, to have installed in the hotel the furniture and equipment specified in the contract, and to pay for the same, was, within the authorities, a promise made for the benefit of the other parties furnishing the furniture and equipment, and hence the appellant is entitled to bring suit thereon; and that the court erred in holding to the contrary.

In this case counsel for appellant have divided their argument into seven divisions, under which they insist on the following propositions:

1. That a third person may bring an action for a breach of a contract made by another for the benefit of such third person.

2. That it is not necessary that the third party should have furnished any consideration to the promisor.

3. That it is not necessary that the promisee shall have been himself obligated to the third party.

4. The third party need not have been specifically named in the contract to entitle him to recover.

5. The third party need not have known of the making of the contract in order to recover.

6. The contract need not have beén, accepted or assented to by the third party before bringing the suit.

7. That a beneficial interest in the enforcement of the contract is sufficient to give the third party the right to sue thereon.

Appellees state that they are making no contention against the legal premises of appellant in the second, third, fourth, fifth and sixth propositions, as above stated. They do dissent from the seventh proposition above asserted, and aver that the first proposition is true only to a limited extent, and applies only where the contracting parties intended a benefit to a third person. Appellees insist that the fact that one not a party or privy to a contract is incidentally benefited under it, is not sufficient for declaring that the contract was made and intended for his benefit. And the question whether a contract was so intended is one of construction.

Little light would be thrown upon this controversy by an attempt to analyze the numerous cases that have been cited, many of which have a contrary state of facts and none of which are exactly identical. The case is to be decided upon general principles applicable to the language used in the contract and considering the position of the parties and the ends they had in view. Appellees have cited the statement of the rule on this subject, found in the article on contracts in 6 R. C. L. sec. 274, page 886, where, in discussing the right of a third person to sue on a contract, it is said:

“Under the rule that a beneficiary may enforce a contract, the contract must have been intended for the benefit of a third person. It is not sufficient that the performance of the covenant may benefit a third person. It must have been entered into for his benefit, or at least such benefit must be the direct result of performance and so within the contemplation of the parties. The fact that one not a party or privy to a contract is incidentally benefited under it, is no reason for declaring that the contract was made and intended for his benefit. A contract between two persons cannot be held to be for the benefit of a third from the mere fact that its breach or negligence in discharging the duties undertaken by it, has resulted in injury to such third person. . . . Ordinarily it is sufficient if the contract is evidently made for the benefit of a third person. The question whether the contract was so intended is one of construction. That intention must be gathered, just as in the case of any other contract, from reading the contract, as a whole, in the light of the circumstances under which it was entered into. But it has been observed that, inasmuch as people usually stipulate for themselves, and not for third persons, a strong presumption obtains in any given case that such was their intention; and that the implication to overcome that presumption must be so strong as to amount practically to an express declaration.” Likely neither party would object in this case to being measured by this rule. It is of much assistance that both parties subscribe to the second, third, fourth, fifth and sixth legal propositions stated by appellant. We repeat certain rules set out in 6 R O. L. supra: “It must have been entered into for his benefit, or at least such benefit must be the direct result of performance and so within the contemplation of the parties.” And again, “Ordinarily it is sufficient if the contract is evidently made for the benefit of a third person.”

The point under consideration was passed on in the case of McConnell v. General Roofing Mfg. Co., 187 Ill. App. 99, and the holding there is accurately digested in the syllabus as follows: “1. Landlord and Tenant, § 411 — when contract by third person to pay rent is for benefit of lessor. Where a third party entered into a contract with a lessee of certain premises to make the latter the former’s selling agent and agreed therein to assume the payment of all rents provided in the lease, held that the promise of such third party to pay the rent was for the benefit of the lessor, though payment of the rent was not the primary object of the contract.”

It was contended in that case that the promise was made for the benefit of the parties to the contract and that the rule that a third party may sue on a contract made for his benefit is subject to the qualification that it must appear that the promise was made directly and primarily for the benefit of the third person. The Appellate Court of the First District in answering this contention said (p. 107):

“Second. The argument that the contracts of September 26, 1908, and May 13, 1910, were not made primarily for the benefit of appellee, and that for this reason no action can be maintained by appellee upon the promise to pay rent therein contained, while it is ingenious, is unsound, in our opinion. It is true that the principal purpose or main object of these contracts was not merely the payment of rent to appellee. It is equally true, however, that the principal or primary purpose of a warranty deed, containing a clause to the effect that the grantee assumes and agrees to pay a mortgage upon the premises conveyed, is not merely the payment of the incumbrance. The primary object of the deed in such case is the conveyance of the legal title to the property, but the promise to pay the mortgage is nevertheless always considered as a promise for the benefit of the mortgagee. Webster v. Fleming, supra. So, in this case, the primary object of the contracts between appellant and Woodley & Co. was to establish and maintain a branch office for appellant in charge of Woodley & Co. as appellant’s agent, upon the premises described in the leases; but the promise of appellant to pay the rent was quite as directly and primarily for appellee’s benefit as the promise to pay the incumbrance was for the benefit of the mortgagee in the cases above cited. ’ ’

This is in accord with the rule laid down in the earlier cases. In Brown v. Strait, 19 Ill. 88, the court held: “One Collins owed the plaintiff below (William Brown), forty dollars. Collins sold the defendants a mill,, for which they paid him some money, and verbally promised to pay his debt to the plaintiff, but which, on demand of plaintiff, they refused to do. The court, on this state of fact, rendered judgment against the plaintiff for costs. The case of Eddy v. Roberts, 17 Ill. 505, decides the question here. In that case, the court say: ‘Where one enters into a simple contract for the benefit of a third, such third person may maintain an action for breach, and such contract is not within the statute of frauds.’ ” The judgment was reversed and the cause remanded.

In another early case, Bristow v. Lane, 21 Ill. 194, the third party was held to have a cause of action even though not named in the contract. In that case Bristow and one Newman entered into an agreement with one Clampit, as follows:

“ ‘We hereby agree and bind myself to compromise with the creditors of Mr. Clampit, in Philadelphia and New York, lift the notes held against him in the said cities, contracted in the Spring of 1856; provided, in the compromise I can make such arrangements as not to sustain any loss by Mrs. Clampit withholding her signature from a deed to their house and lot in Jacksonville.

(Signed) B. F. Bristow.,

B. Newman.’

“ ‘The above obligation is in consideration of a house and lot deeded to me by Mr. Clampit, this March 22nd, 1857.

B. F. Bristow,

B. Newman. ’ ”

A creditor of Clampit brought suit on the agreement and the trial court overruled a demurrer to the declaration. On appeal, the decision of the trial court was affirmed by the Supreme Court and in its opinion the court holds (p. 198):

“In the case before us, real estate was conveyed by the debtor of the plaintiffs to the defendants, on their written undertaking to compromise with his creditors in Philadelphia and New York, and take up the notes held against him in those cities, for debts contracted in the spring of 1856. Now though the plaintiffs are not named in this undertaking, all that is necessary for them to show is, that this debt for which they sue, or this note, was given by their debtor who made the arrangement with the appellants, either in New York or Philadelphia, in the spring of 1856. The creditors affirm this act of their debtor for their benefit, by bringing this suit.”

In Merchants Loan & Trust Co. v. Ummach, 228 Ill. App. 67, the court held on page 80: “We are of the opinion that the plaintiff, Merchants Loan and Trust Company, the third party in the case at bar, is entitled to recover against the defendant Ummach, the promisor, that recovery being based on the contract the latter made with Edwards, the promisee, wherein the defendant assumed the payment of the Schaaf notes and promised to pay them. Where one makes a contract with another, for the benefit of a third person, the latter, though not a party to the contract, may maintain an action upon it against the promisor. The contract need not have been accepted or assented to by the third party. It does not involve an indemnity, but the promise is deemed to invest the person for whose benefit it is made with an immediate interest and right as though the promise had been made to him. To enable the third party to maintain an action on the contract, it is not necessary that any consideration shall have moved from the third party to the promisor. The consideration moving from the promisee is sufficient on which, to base the liability of the promisor to the third party. In such an action the question of the liability of the promisee to the third party is immaterial, as the liability of the promisor does not depend upon the liability of the promisee to the third party. The promisee need not have been indebted to the third party, nor is it necessary that the obligation undertaken by the promisor shall relieve the promisee of any legal liability. It is not necessary, to enable the third party to sue the promisor, that the obligation shall have been undertaken by the latter directly or primarily for the benefit of the third person. The liability of the promisor to the third party in an action brought by the latter against the former depends merely upon the question of whether the third party has a beneficial interest in the enforcement of the contract. Dean v. Walker, 107 Ill. 540; Webster v. Fleming, 178 Ill. 140; Olson v. Ostby, 178 Ill. App. 165; Torpe v. John, 177 Ill. App. 85; Easter v. Newbury, 170 Ill. App. 494; Lawrence v. Oglesby, 178 Ill. 122; Dallum v. Birdsall, 66 Ill. 378; McConnell v. General Roofing Mfg. Co., 187 Ill. App. 99; Harts v. Emery, 184 Ill. 564.” In this case the Supreme Court denied a petition for certiorari.

But appellees contend that none of the cases cited by the appellant conflict with the rule of law for which they contend; that there is no conflict between the authorities cited by appellant and those relied upon by appellee; that it is true that in Merchants Loan & Trust Co. v. Ummach, 228 Ill. App. 67, it is stated that it is not necessary that the obligation shall have been undertaken directly or primarily for the benefit of the third person, but by that expression evidently the court meant that the motive need not be to benefit the third person.

It is further contended by appellees that other statements in the TJmmach case clearly show that the court recognized that there must have been a contractual intent between the contracting parties that money be paid to the third party.

The position of the parties on November 24, 1926, when the contract was made, was that the hotel company had given mortgages and trust deeds to secure a bond issue for $700,000 and out of the proceeds thereof had agreed to construct the building and equip the same with furniture and furnishings sufficient to run the hotel and place it upon an income paying basis. The building and the entire furnishings (though not yet purchased) had been conveyed to Caldwell & Company to secure the $700,000 bond issue. Caldwell & Company already had a chattel mortgage on appellant’s linens, which had not yet been purchased or placed in the hotel. At this time the hotel company had on hand moneys sufficient to complete the hotel, in addition to the proceeds of the bonds, but did not have moneys sufficient to furnish the hotel. The hotel company could not carry out its contract. Caldwell & Company refused to furnish the proceeds of any more bonds. The shortages which the hotel company were unable to pay amounted to $115,000 for furniture to Arthur A. Marer & Company, and the sum of $55,000 to the other parties furnishing equipment, including appellant.

The contract in question could not have been made solely for the benefit of the hotel company, because appellees’ testator agreed to pay nothing to the hotel company. Caldwell & Company were mere brokers and underwriters of the bonds and for all that appears in the record they were willing to stop where they were and hold what money (proceeds of bonds) they then had. There is no intimation that appellees’ testator expected to procure any furnishings or linens from Caldwell & Company. It is not shown that they had any connections in that line. Caldwell & Company had sold bonds, secured by chattel mortgages, which purported to convey linens and equipment, and Caldwell & Company were asking appellees ’ testator, president of the mortgagor, to deliver the goods without obligation to them. It can hardly be said that appellees’ testator and Wolford signed the agreement never expecting to be obligated to any person. New men versed in business affairs, as the record indicates, sign agreements with that purpose in view. If there is any purpose or motive on the part of appellees-’ testator in signing this contract, it will, of course, be derived from the actual reading of the contract. The contract recites: “Whereas John Harrison is President of the Danville Hotel Company, M. J. Wolford is Treasurer and interested in said Danville Hotel Company. ...” At this point we strain the construction of the language used to hold that they meant to say that both the president and treasurer were interested in the hotel company. And the parties of the first part, appellees ’ testator and Wolford, as to Arthur A. Marer & Company of Chicago and their item for furniture amounting to $115,000, which included a written contract for that amount, agreed: “We do hereby guarantee the installation in the Wolford Hotel of Danville on or before December 15,1926,” the said bill of goods, “agreeing, if the Hotel Company does not promptly pay, to pay for said Hotel Company all of the payments therein required to be made before installation is completed when said payments are due.” The Marer contract had been made a part of appellees’ testator’s contract. As to the other items, including appellant’s goods which had not then been purchased, the contract reads: “The parties of the first part (appellees’ testator and Wolford, interested in the hotel) will promptly pay for the above characters of furnishings and equipment when payments are due, if the Hotel Company does not do so, so that installation of same promptly and free of lien is assured.”

When this contract was signed, Caldwell & Company agreed to furnish further proceeds of bonds sold for the completing of the hotel. Now to whom did appellees’ testator and Wolford agree to. make these payments? It is not an instrument of guaranty or indemnity, but reads very much like an original undertaking. Of the strange things suggested in this case we do not find it suggested that these payments should be made to the hotel company or to Caldwell & Company or even to appellees’ testator and Wolford themselves. It is not claimed to be a void instrument and that it is void has not even been suggested. Appellees ’ testator and Wolford knew when they signed the contract that the goods had already been mortgaged and that whoever sold and shipped the goods, if they were delivered, would lose their vendor’s lien, and in the case of appellant any chance of recovering the purchase price from the vendee, the Hotel Company. Appellees ’ testator and Wolford did not want goods placed in a hotel in which they were interested in that way. They did not intend that a set of brick walls, in a beautiful growing city in Illinois should be used as a lure to false credit. In the contract they made it as plain as it could be written that if it became necessary, as they knew it would be, they and each of them had placed an original order for the goods, and that they would pay for them to the only person or company entitled to any pay — the party who furnished the goods. The language of the contract was plain that it was intended to be a personal obligation to the parties who furnished the goods and upon it, the vend- or, whoever he or it might be, could sue the makers of the agreement. By the exact language used, appellees ’ testator and Wolford expressed a “contractual intent” for a good and valid consideration, upon a matter in which they were interested, for the benefit of appellant, and we do not see how language could make it plainer.

Accordingly, the judgment of the circuit court of Vermilion county is reversed and the cause remanded.

Reversed and remanded.

Upon petition presented for a rehearing by appellees, and it having been duly considered, the opinion is modified, adhered to, and petition for rehearing denied. Upon stipulation, entered by all parties, the amount of the claim not being in dispute, this court finds that the amount of the claim of appellant against appellees is the sum of $3,956.64, which includes interest of 5 per cent per annum to this 7th day of April 1931. Accordingly in pursuance of said stipulation, judgment is entered in this court, that plaintiff, appellant, have and recover from the appellees, defendants and. executors, the sum of $3,956.64 with all costs of suit, the same to he paid in the due course of administration and executors duly except as per stipulation and cause not to he remanded.


author: Mr. Presiding Justice Shurtlepp

text:
    Charles Fry, Appellee, v. H. C. Pence et al., Appellants.
    Gen. No. 8,490.

      Opinion filed January 26, 1931.
    Rehearing denied April 10, 1931.

      John A. Barber, Clayton J. Barber and Leslie J. Taylor, for appellants; Alton G-. Hall and C. E. Flesher, of counsel.
    J. E. Hogan and E. E. Dowell, for appellee.
   Mr. Presiding Justice Shurtlepp

delivered the opinion of the court.

This litigation arises over a bill for accounting filed by appellee, Charles Fry, surviving husband of Sadie Fry, deceased, in the circuit court of Christian county against H. C. Pence, Mary Springstun and Emma Kuhn. The bill sought an accounting from H. C. Pence of a certain trust estate for which he was trustee, and as to which the appellee, Charles Fry, claimed to be the sole beneficiary and entitled to all of the assets and property constituting said trust estate. The defendants in the bill, H. C. Pence, Will Pence, Mary Springs-tun and Emma Kuhn, are the surviving brothers and sisters of Sadie Fry, deceased.

The bill of complaint in this case charges and avers that Sadie Fry, the wife of appellee, departed this life intestate in the City of Pana, in said county, on or about the 6th day of February, 1925; that she left surviving her the appellee, Charles Fry, her widower, but left surviving her no child or children, nor the descendants of any child or children; that her father and mother were both dead; that each of them departed this life prior to her death, and that she left surviving her the following brothers and sisters, viz.: H. C. Pence, Will Pence, Mary Springstun and Emma Kuhn, and avers that there are no children of any deceased brothers or sisters, and that appellee and the brothers and sisters above named are the only persons having any interest in the subject matter in this bill.

The bill avers that Sadie Fry in her lifetime, by the name, style and description of Sadie Warren, on July 25, 1922, at the City of Taylorville in said county, entered into a certain written agreement with one H. C. Pence of Taylorville, Illinois, one of the parties defendant, which agreement was entered into prior to the marriage of the appellee and the said Sadie Warren; that said agreement was executed by the said Sadie Fry by the name of Sadie Warren and the execution thereof duly acknowledged before Leslie J. Taylor, a notary public in said county; avers that by the terms and provisions of said written agreement and in consideration of one dollar and other good and valuable consideration and benefits to accrue to her, the said Sadie Warren, she did thereby sell, transfer, assign and pay over and deliver into the hands of the said II. C. Pence in cash the sum of $15,000, and avers that the sum of money aforesaid was paid and delivered to the said H. C. Pence in trust only for the uses and purposes and upon the terms and conditions following, that is to say: That said H. C. Pence, as such trustee, agreed that said funds should be invested and kept invested as continually as might be, in securities of the class in which trustees are permitted by law to invest trust funds, towit, in State, national or municipal bonds, warrants or certificates of indebtedness, first mortgages on improved lands, situated in the State of Illinois, together with other provisions set forth in said trust agreement; that said H. C. Pence agreed by said instrument of writing, as such trustee, to collect the income promptly from the trust fund and after payment of necessary expenses and charges properly payable therefrom, and all taxes and assessments levied against said property, and other expenses incident to the handling of such funds, to pay over the net income therefrom to the said Sadie Warren at quarterly intervals or of tener if such funds were available and in the opinion of the said H. C. Pence were necessary or desirable. The bill avers that neither the trust fund nor the income in the hands of the said H. C. Pence shall be subject to assignment, sale, transfer, debt or obligation of the said Sadie Warren, and that said trust agreement further provided that the payments to be made by the said trustee should continue for and during the term of the natural life of the said Sadie Warren; avers that by the said trust agreement all unused income and all of the principal of said trust fund remaining in the hands of the trustee should be disposed of as follows: that in the event the said Sadie Warren may have married and died leaving issue of such marriage or children or descendants of children issue of such marriage, then and in such event it was the duty of the trustee under the trust agreement to pay to such issue of such marriage or their descendants if living all of said trust fund in accordance with the laws of descent of the State of Illinois; that in the event said Sadie Warren should die, leaving no child or descendants of children, issue of a lawful marriage, then and in that event within one year after her death the trust fund should be converted into cash and the proceeds distributed to the heirs at law of the said Sadie Warren in accordance with the laws of descent of the State of Illinois. The bill avers that it was further provided in said agreement that said trustee or his successor in trust should render to the said Sadie Warren on the first day of July of each year during her lifetime a report, showing the investments of said trust fund, the gross receipts therefrom, the expenditures on account thereof and the net income.

The bill further avers that upon the execution of the trust agreement the said Sadie Warren paid and delivered to the said H. C. Pence the said sum of $15,000 in trust, to be handled and invested by bim under the terms of the trust agreement, and avers that the said H. C. Pence has had and still has the possession, control and management of said trust fund as such trustee, and that no other trustee was appointed in his stead, and that he did not during the lifetime of the said Sadie Warren surrender or return said trust fund to her, and avers upon information and belief that said H. C. Pence is still acting as such trustee under the agreement aforesaid, and that he has in his possession the principal of said trust estate together with divers amounts of interest and income therefrom.

The bill further avers that after July 25, 1922, appellee was lawfully married to the said Sadie Warren, and that the marriage relation between them existed and continued from the date thereof until the date of the death of the said Sadie Fry, and avers that the said Sadie Warren, whose name is signed to the trust agreement, and the said Sadie Fry above mentioned, are one and the same person.

The bill avers that by virtue of the premises and by virtue of appellee’s marriage to the said Sadie Warren, and by virtue of the death of the said Sadie Fry, leaving appellee as her surviving* husband, and by virtue of the terms and conditions of said trust agreement, and of the statute in such cases made and provided, appellee is entitled to the whole of the said trust estate and property, and all the interest and earnings and accumulations now in the hands of the said trustee and not heretofore accounted for and paid over to the said Sadie Warren or the said Sadie Fry in her lifetime.

The bill further avers that after the death of Sadie Fry, appellee frequently applied to the said H. C. Pence, the trustee aforesaid, and requested that he render to appellee an account of his acts and doings as such trustee, and disclose to him the condition of said trust estate and of the amount of principal and interest then in his hands, possession and control, and requested said H. C. Pence as such trustee to pay over to appellee the principal of said trust estate and the net interest and profits and accumulations thereof; avers that the said H. C. Pence has at all times since the death of said Sadie Fry refused to render to said appellee any account of said trust estate or of the funds in his hands, or of the interest, earnings and accumulations thereof, and has refused to pay over to appellee the principal of said trust estate or the interest, earnings and accumulations from the trust property; avers that appellee has during all the time aforesaid been wholly unable to obtain any settlement or account of said trust estate from the said H. C. Pence as such trustee, and avers that appellee verily believes that he will be unable to obtain any such settlement or accounting touching said trust estate under the agreement aforesaid without the aid and assistance of the court.

The bill avers that the other defendants, Will Pence, Mary Springstun and Emma Kuhn, brother and sisters of said Sadie Fry, deceased, have or claim to have some right or interest in said trust estate and the property, assets and funds thereof. The bill prays for an accounting and that the court may declare the trust created as aforesaid at an end/and that the proceeds thereof be distributed according to the terms of said trust agreement and for general relief.

To this bill the defendants filed a joint and separate plea in which it is averred that Sadie Fry on February 13, 1925, by her writing, duly witnessed and acknowledged, conveyed all her personal property, including trust fund in the hands of H. O. Pence, to the defendant, H. O. Pence; and also pleaded a settlement entered into between Charles Fry and the said H. C. Pence, on or about April 2, 1925.

After the filing of this plea, appellee obtained leave to amend his bill, and thereafter filed an amendment to the same in which it is averred that the alleged bill of sale set out in the plea was null and void because there was no valid consideration for the same, and because it attempted to make a testamentary disposition of the property and estate of the said Sadie Fry to take effect after her death, and was not witnessed and executed according to-the statute in relation to wills, and because the property and assets of the trust estate were not subject to sale and assignment. The amendment also averred that the alleged release of April 2, 1925, was procured by fraud, deceit and misrepresentation on the part of the defendant H. O. Pence; that as such trustee he wilfully, intentionally and wrongfully refused to make any accounting of the trust estate or of the amount and property and assets thereof; that he refused to permit appellee and his counsel to read and examine the trust agreement; that he fraudulently represented to appellee at the time said alleged settlement was entered into that the trust estate consisted of only about $2,700, and that he fraudulently, wrongfully and deceitfully represented to appellee that he, appellee, was liable to the said H. O. Pence on account of moneys and funds which the trustee alleged the appellee had obtained from his wife during her lifetime and prayed that the bill of sale and alleged release be vacated, canceled, set aside and for naught esteemed for the reasons aforesaid.

To the bill as amended the defendants demurred, which demurrer was overruled by the court. Following the overruling of said demurrer appellants filed a joint and several answer to the bill. They admit the death of the said Sadie Fry as alleged in the bill; neither admit nor deny execution of the trust agreement. H. C. Pence for himself admits the trust agreement was executed; admit they were informed that H. O. Pence received $15,000 as trustee, but deny that he has had in his control the said trust fund but aver a disposition of it by the alleged settlement made on April 2,1925, and the distribution of the trust fund to the heirs of Sadie Fry other than Charles Fry, and allege that appellee is estopped to claim any right, title or interest in said fund; allege the execution of said bill of sale to EL C. Pence whereby Sadie Fry conveyed all interest in her personal property to the said IE. C. Pence, and aver that at the time of her death the only personal property she had was a claim against appellee for $9,500, which he had agreed to pay; deny that appellee became entitled to any trust funds in the hands of H. C. Pence; deny any request for an accounting; deny any request for payment of the trust estate; deny that he has been unable to obtain any settlement and aver a full settlement made on April 2, 1925, indorsed on the said bill of sale heretofore referred to; deny that H. C. Pence as trustee or the other defendants were called upon to make any accounting to appellee; deny that the bill of sale was obtained for the purpose of avoiding or evading the statute of wills and was executed by the said Sadie Pence Fry at the. hospital at Pana at her own instance and request, and deny that she executed the bill of sale without knowledge of the purpose or the intention of the said H. C. Pence; aver frequent settlements and accounts of the said H. C. Pence with the said Sadie Fry; aver that appellee induced the said Sadie Fry to enter into the marriage relation for the sole and only purpose of securing the property of the said Sadie Fry and converting it to his own use; that she received about $8,000 as heir of her father, and that appellee obtained the money under promise of giving security of the loan and refused to do so; aver that when appellee learned of the $15,000 transferred to the said H. C. Pence, he demanded that the trust be broken and that he insisted that the income be paid over as fast as accumulated,' and that appellee obtained said funds and used the same for the payment of taxes on his own property and other personal expenditures; aver that he neglected his said wife, refused to treat her as his wife; that he failed to contribute to her support or to furnish her with the necessities of life from the time of her marriage, and aver that he did not call upon her during the time that she was in the hospital or assist her in entering the hospital; aver that appellee employed several attorneys and was advised by them as to his rights and interests; that he knew that his wife had contracted obligations as - surety or accommodation maker of notes, and that if the holders learned that Charles Fry was indebted to the said Sadie Fry in the sum of $9,500 that he would be required to account to and with said creditors for said sum, and that he sought a settlement and compromise with H. C. Pence in reference to said matters; deny the making of any misrepresentations as in said amendment charged and aver that appellee had been familiar with said trust agreement many months prior to said settlement and aver that he had a copy thereof in his possession at the time of the death of said Sadie Fry; deny the making of any statements in regard to the payment of large sums of money to said Sadie Fry in her lifetime; deny that at the death of the said Sadie Fry appellee became entitled to the trust fund, or any part thereof, or that H. C. Pence occupied any fiduciary relation toward appellee; deny the concealment of any facts from the said appellee; allege that Charles Fry applied for and obtained letters of administration from the county court of Christian county, Illinois, on the estate of the said Sadie Fry, deceased, and that thereafter Charles Fry, administrator as aforesaid, impleaded H. C. Pence in a certain bill in equity, being a bill for accounting in which he sought to recover the alleged trust fund of $15,000 as an asset of the estate of Sadie Fry, deceased, and that he was entitled to have said fund paid over to him for administration and aver said judgment to be a bar to this proceeding.

Exceptions were sustained to a part of the answer and overruled as to certain other parts. There was a trial before the court without a jury and the court found the issues in favor of the appellee, and later on and before entry of a decree, by agreement of the parties, heard the evidence as to an accounting and made disposition of the whole case by one decree.

The court by its decree found that H. C. Pence, appellant, is indebted to the complainant in the principal sum of $10,764.74, together with interest thereon at the rate of five per cent per annum from January 26, 1927, to March 14, 1930, amounting to $1,684.33, the total indebtedness on said March 14, 1930, by the appellant H. C. Pence as trustee, to the complainant, Charles Fry, being the sum of $12,449.07.

The court further found that H. C. Pence, trustee, on January 26, 1927, wrongfully made distribution of the funds constituting said trust estate; that he paid Emma Kuhn, Mary Springstnn and Will Pence, appellants, and to himself each the sum of $2,693.68, and that in the event said H. C. Pence shall fail to pay the entire sum so found by the court due to the complainant, then said complainant, Charles Fry, shall have the right to recover the sum of $2,693.68 with interest from January 26, 1927, from each of the said defendants, appellants.

The court ordered that the said bill of sale exe-> cuted by the said Sadie Fry to H. C. Pence, bearing date February 13,1925, by which Sadie Fry attempted to sell and convey to the said H. C. Pence, appellant, the bonds and other securities constituting the trust property and estate, be vacated, canceled and set aside and the release executed by Charles Fry to the defendant H. C. Pence, bearing date April 2, 1925, be vacated, canceled and set aside.

The court ordered the defendant H. C. Pence to pay over to the complainant the said sum of $12,449.07 with interest at five per cent per annum from the date of the decree, and that judgment be entered in favor of the complainant, Charles Fry, and against the defendant H. O. Pence for that amount, together with costs of this proceeding, and in the event of failure to pay said judgment and costs execution may issue therefor.

The court ordered that in the event of any failure upon the part of H. C. Pence to pay the said sum of money to the complainant, Charles Fry, or in the event of inability of the complainant to collect said money, it is ordered that the said sum, with interest and costs, be recovered from the defendants and appellants Will Pence, Emma Kuhn and Mary Springstun, who are hereby decreed severally liable therefor, according to the respective amounts so paid to them by the said H. C. Pence in said distribution, and that judgment is hereby entered against them for the said sum of $2,693.60, with interest from March 14, 1930.

Appellants have brought the record of the cause by appeal to this court for review.

We do not regard the allegations of the answer, in relation to the purposes of the marriage between appellee and his wife, or their financial transactions with each other, or the details of their domestic life, as being in any wise material to the issues presented by the bill or subject to trial and determination in this suit. The language of this trust is of a perfect and completed trust, for a definite purpose, to extend during the lifetime of the creator of the trust and the property, and its title for the purpose of the trust passed to the trustee. Such a trust is not subject to revocation by the grantor, but must be carried out and completed by the trustee.

In Hubbard v. Buddemeier, 328 Ill. 76, 85, the court held:

“A trust created by a deed conveying property to the grantee to manage, receive the rents and pay the same to a particular person or for a particular purpose for a certain time and then apply the property to another designated purpose cannot be defeated by the subsequent acts of the grantor and the trustee. (Williams v. Evans, 154 Ill. 98; Massey v. Huntington, 118 id. 80.) A trust is created when no act is necessary to be done ,to give it effect and when the trust is fully and finally declared in the instrument creating it. A trust thus perfectly created and complete requires no consideration to support it. (2 Pomeroy’s Eq. Jur. sec. 1001; 1 Perry on Trusts, sec. 98; Massey v. Huntington, supra; Padfield v. Padfield, 68 Ill. 210.) The allegation that out of the money borrowed and rents received the appellant has paid all money due the beneficiaries under the trust created by the will of Fannie A. Buddemeier, and also all debts and obligations existing against the appellee as mentioned in paragraph 2, clauses (b) and (d) in the deed, does not justify the conclusion of law that all the objects and purposes for which the trust was created have been accomplished. Where the beneficiaries of a trust are all competent to act and the trust estate is subject to no future contingencies and the beneficiaries have an absolute right to the trust estate the trust may be terminated by a contract of all the beneficiaries (2 Perry on Trusts, sec. 920). This, however, cannot be done against the objection of one beneficiary. (Stephens v. Collison, 274 Ill. 389.) Trusts cannot be terminated by agreement of the beneficiaries except in cases where the object of the trust has been practically accomplished and all the interests created by it have become vested. (Anderson v. Williams, 262 Ill. 308; Johnston v. Gastman, 291 id. 516.) While the bill shows the object of the trust to relieve appellee and her property from the burden and lien of her then existing indebtedness has been accomplished, it also shows that the full purpose of a trust has not been accomplished, that it is uncertain to whom, under the terms of the trust, the title to the land is ultimately to- pass, and that the deed by which the trust was created reserved no power of revocation to the grantor. ”.

The same rule is laid down in Williams v. Evans, 154 Ill. 98; Massey v. Huntington, 118 Ill. 80, and McCartney v. Ridgway, 160 Ill. 129.

It appears from the evidence that Sadie Fry became a patient at the Huber Memorial Hospital in Pana on February 10, 1925; that she entered said institution for observation and treatment and was taken there on the evening of that day by her husband. Dr. Eberspacher was the attending physician. On Wednesday of that week X-Ray plates were made of the patient, and on Thursday it was decided that she was suffering from obstruction of the bowels and that an operation was deemed necessary. That fact was communicated to the decedent, but appellee was not advised of it. During all the time decedent was in the hospital her sister, Emma Kuhn, one of the appellants, was with her. The evidence disclosed that Dr. H. C. Pence, her brother, visited her at the hospital on Thursday evening prior to the operation on Friday morning, and immediately upon his return to Taylorville he caused to be prepared the alleged bill of sale, part of which was typewritten and part of which was filled in with pen and ink. He returned to Pana with this document on Friday morning, the day of the operation, went to the H. N. Schuyler State Bank and got one A. W. Seiler, a notary public, whom he took to the hospital with him for the purpose of taking an acknowledgment of this bill of sale. The evidence discloses that this bill of sale was executed by Mrs. Fry just a short time before she was taken to the operating room; that she knew her condition was serious, knew that she was undergoing a major surgical operation, the outcome of which was decidedly uncertain, and following which she passed away on February 15,1925,

This bill of sale for a purported consideration of one dollar pretended to convey to appellant, Dr. H. C. Pence, her trustee, all of his sister’s property, her household goods and the property held in trust “to his own proper use and behoof forever and for such disposition otherwise as he thinks best.” For the reasons stated and from the relationship of the parties, we do not understand appellants to claim that the title of any of the property passed by this bill of sale, but it was used later as an instrument to effect a purported settlement. Thereafter on April 2, 1925, appellant Dr. Pence obtained from appellee a release in the following terms:

“Pana, Illinois, Apr. 2, 1925.

“In consideration of the advances heretofore made by my wife, Sadie Fry to me, I, the undersigned, Charles Fry, husband of Sadie Fry, hereby confirm the within bill of sale by her; I waive.all right, title, claim or interest in the goods and chattels therein described.

Charles W. Fry.

“Subscribed and sworn to before me this 2nd day of April, A. D. 1925.

Claude Butts,

(S eal) Notary Public. ’ ’

A further agreement was executed at the same time in the following form:

“Charles Fry, husband of Sadie Fry, now deceased, and H. C. Pence, her brother, have this day made the following contract and settlement:

“Sadie Fry in her lifetime turned over to Charles Fry approximately $9,500.00.

“Sadie Fry, prior to her marriage to Charles Fry, turned over to H. C. Pence $15,000.00.

“Sadie Fry prior to her death, made H. C. Pence a bill of sale of all of her personal property, including the chattel property, household goods, etc.

“It is agreed by the parties hereto, that a full and complete settlement has been made between them as to all claims either has; to any and all personal property owned or claimed to be owned by Sadie Fry and by the terms of such settlement, H. C. Pence waives all claims to the Chattel property and personal effects of Sadie Fry, and releases all claim to same to Charles Fry, as well as all claim to said $9,500.00.

“Charles Fry assumes and agrees to pay the Hospital, Doctor’s, Surgeon’s and other expenses of last illness of Sadie Fry, and also the entire funeral expenses. H. C. Pence to give Chas. Fry Two Thousand Dollars.

“Charles Fry, having read the,Bill of Sale and contract between Sadie Fry and H. C. Pence, waives any and all claim to the fund in the sum of $15,000.00 and any increase thereon, and acknowledges the ownership of H. C. Pence to the same.

“Neither party will institute, or cause to be instituted, any administration of the Estate of Sadie Fry; there being no estate to administer, nor any other proceedings in court to question in any way the right to property herein agreed upon, nor aid or assist in any such proceeding.

Charles W. Fry,

H. C. Pence.

“Subscribed and sworn to before me this 2nd day of April, A. D. 1925.

Claude Butts,

(Seal) Notary Public. ’ ’

The whole contention in this case is whether the above and foregoing instrument was entered into by appellee freely and voluntarily and without any undue influence on the part of appellants.

The evidence tends to disclose as claimed by appellee that after the death of Sadie Fry appellee consulted Hon. A. J. Steidley, an attorney at law, of Shelbyville, in regard to the nature of his wife’s estate. It also appears that he knew in a general way that appellant H. C. Pence was handling certain moneys and funds belonging to Mrs. Pry but was not informed in regard to the terms and conditions under which the money was being held, the nature of the contract between his wife and her brother, or the amount of the funds involved. It appears that on the 21st day of February, appellee and his attorney started to Taylorville to see appellant H. C. Pence in regard to this money. They telephoned his office at Taylorville and were informed that he would be in Pana that day and might be seen at the residence of John Kuhn, husband of Emma Kuhn, one of the appellants, about a mile and a half east of Pana. Appellee and his attorney went to the Kuhn residence and saw Dr. Pence, but had no opportunity to talk with him, but did make an appointment to see him at the Flint Hotel at Pana during the noon hour. The evidence discloses that the parties met pursuant to the appointment and Mr. Steidley explained to Dr. Pence that the purpose of their visit was to ascertain in regard to the property, assets and funds of the estate of Sadie Fry. At that time Dr. Pence said in substance that she left no estate; that whatever property she had belonged to him; that appellee needed no attorney and that they could settle and adjust any matter that needed settlement or adjustment between them. Later on in the same day at a conversation held in front of the office of the Pana Coal Company at Pana, at which time Mr. Pence had his attorney present, both Mr. Pence and his attorney stated that the contract was an iron-clad agreement, and that appellee had no interest in the property involved in the trust estate. They did agree that if Mr. Steidley would come to Taylorville at some later date he might read the trust agreement, and towards the latter part of March he and appellee did go to Taylorville for that purpose. They called upon Mr. Taylor, Dr. Pence’s attorney, who told them that he had no time to talk to them. They called at Dr. Pence’s office and told him they came for the purpose of reading the trust agreement; that Dr. Pence refused to permit them to read the agreement except in the presence of his attorney, and told them that he was advised that he was the owner of all of the assets of the trust estate and it was up to him whether he would give appellee anything or not. The evidence discloses that Mr. Steidley while he was acting as appellee’s attorney, never did see or read the trust agreement.

The evidence also discloses that immediately following the visit of appellee and his attorney to Taylorville that Dr. Pence, on April 2, 1925, came to Pana and went to the residence of appellee; that he had no previous appointment with him and found appellee away from home at work. Dr. Pence drove to the place where appellee was at work and made an appointment to see him that evening at his residence. Dr. Pence returned there about 7:30 in the evening. He and appellee spent some time discussing matters while they were seated in Dr. Pence’s car just south of appellee’s residence. Appellee states that upon that occasion Dr. Pence told him he was all wrong in regard to the trust estate; that he didn’t have any $15,000 in his hands; that there was only about $2,700 left and that if they got into litigation he could drag the thing along through court for four or five years and appellee would get nothing. Dr. Pence solicited appellee to settle all of their difficulties and told him that he would leave the furniture, which he never intended to take, and made various offers in the way of money in addition thereto and finally offered $2,000 in settlement. Appellee told him if his statement was correct that there was only about $2,700 in the trust estate and he would leave the furniture, that possibly a settlement on that basis would be as much as he could hope to get at the end of a lawsuit and he told Dr. Pence that he would settle on that basis.

The evidence discloses that Dr. Pence had with him already prepared some sort of a typewritten paper, which is the contract heretofore referred to in the pleadings. He and Fry went into the house and the paper was handed to Fry, but having no glasses he was unable to read the paper. Dr. Pence purported to read it to him and both of them then executed it and later on came to Pana where Claude Butts, a notary public, put a jurat upon the paper under his notary seal. Appellee testifies that at the time the paper was signed there were no interlineations, additions or corrections made to the paper but when the same was offered in evidence portions thereof had been changed by pen and ink. The evidence also discloses that appellant Pence, the trustee, never did make an accounting to the appellee of the condition of the trust estate; that he never gave him any information as to the amount and value, or the nature and character of the assets in his hands, and that at the time of the execution of said release appellee had no knowledge or information in relation thereto and did not have the aid or advice of counsel, and that he relied upon and acted upon the statements and representations made by Dr. Pence, trustee.

The evidence also disclosed that appellee is a farmer by occupation, is also engaged in operating a threshing machine, and that he is a man of very limited learning and would be wholly unable to know or understand the scope and legal effect of a document such as the trust agreement in this case. The evidence also disclosed that Dr. Pence is a practicing dentist and has been for upwards of 30 years and that he had served as district president for the Central Illinois Dental Society.

The evidence also disclosed that two or three weeks after this alleged release was entered into that a sister of appellee who was keeping house for him after his wife’s death, in cleaning house found a paper in a closet where bed clothing was stored, which was Sadie Fry’s copy of the trust agreement, and that this was the first opportunity which appellee ever had to obtain information as to the terms, conditions and provisions of said trust agreement.

The evidence tended to show that immediately upon learning of the critical illness of his sister there was a studied attempt on the part of Dr. Pence to obtain for himself as against appellee all of the property and assets of every kind and character which his sister possessed, and that after her death there was a persistent and successful attempt on his part to keep from appellee all knowledge and information in regard to the property and assets of the trust estate. It also appears from the evidence that throughout all of the negotiations between appellant Pence and appellee prior to the filing of this bill, that appellant persistently represented to appellee and assured him that he was liable to repay to his wife’s estate any and all sums of money which she may have advanced to him during their married life and sought to make 'him believe and did make him believe that he was liable therefor.

Appellants seriously contend that the statement of facts as set forth by appellee does not represent the true state of affairs; that differences existed between appellee and his wife and that while appellee took his wife to the hospital that he refused to pay her bills there and did not go to see her again before her death. Appellants further contend that appellee knew all about the trust agreement and had borrowed moneys from his wife from the income of said trust, and it is further charged that appellee was the moving cause to effect said settlement for fear he would be called upon to pay the sum of $9,500, which he had borrowed from his wife during her lifetime. There are proofs submitted which would tend to support the facts stated upon each side of this litig'ation and in some matters appellee and appellant Pence in their testimony are in direct conflict.

It appears from the proofs that appellee did know that something of a business relation existed between Sadie Pry and her brother Dr. Pence, but there are no proofs that appellee had ever read the trust agreement or knew the amount of the funds until his sister found the papers in his home after the release was executed! It may be that appellee was led into executing the release from the fear that he would have to pay his wife’s estate the sum of $9,500 but if this is so appellee’s fears arose from ignorance of fact and ignorance of law, a condition that appellant Pence, trustee, was not in a position to use to his advantage and appellant Pence could only claim to be acting under the same ignorance of law and facts; otherwise it would constitute a constructive fraud. If the former it would be a mutual mistake. The proofs in this case are complete that appellant Pence withheld the trust agreement and did not make an accounting to appellee, but, before the filing of the bill in this cause, stood and in this litigation stands upon the legality of the release executed by appellee and contends that it was made by appellee with a full knowledge and understanding of all- the facts and as a purely voluntary instrument executed by appellee for the consideration set out, all of which led appellee- to sign and execute the instruments in question which he would not otherwise have done. , In this case appellant Pence occupied a fiduciary relationship. He was trustee for his sister, Sadié Fry, and upon her death, under the law he became the trustee for her husband, appellee. It is a universal rule founded upon public policy, that where a confidential relation exists, if a gift is made to the person in whom the confidence is reposed, by reason of the relation, it is prima facie void.

The law will presume from the mere existence of the relation that the gift was obtained by undue influence or improper means and the burden of 'proof rests upon the donee to show that it was the free and voluntary act of the donor. Every confidential relation implies a condition of superiority by one of the parties over the other and, if one in a superior position obtains a benefit, such as a gift, equity will raise a presumption against its validity and cast upon the donee the burden of proving affirmatively good faith, full knowledge and independent action on the part of the donor. (Michael v. Marshall, 201 Ill. 70, 76; Dowie v. Driscoll, 203 Ill. 480, 490; Gilmore v. Lee, 237 Ill. 402, 411.)

In Gilmore v. Lee, supra, the court held: “It is not necessary, however, that such a conclusion should rest upon the facts proved. It is a universal rule, founded upon public policy, that where a confidential relation exists, if a gift is made to the person in whom the confidence is reposed by reason of the relation it is prima facie void. The law will presume, from the mere existence of the relation, that the gift was obtained by undue influence or improper means, and the burden of proof rests upon the donee to show that it was the free and voluntary act of the donor. Every confidential relation implies a condition of superiority by one of the parties over the other, and if the superior obtains a benefit, such as a gift, equity raises a presumption against its validity and casts upon the donee the burden of proving affirmatively good faith, full knowledge and independent "action on the ■ part of the donor. (Thomas v. Whitney, 186 Ill. 225; Sayles v. Christie, 187 id. 420; Michael v. Marshall, 201 id. 70; Dowie v. Driscoll, supra; 2 Pomeroy’s Eq. Jur. sec. 956; 14 Am. & Eng. Ency. of Law,-2d ed.— 194, 1011; 29 id. 119.) ” This principle reaches every case and grants relief where influence is acquired and abused, or where confidence is reposed and betrayed. It is especially active and searching in dealing with gifts, but is applied, when necessary, to conveyances, contracts, executory and executed, and wills. (Dowie v. Driscoll, supra; Purvines v. Harrison, 151 Ill. 219; White v. Ross, 160 Ill. 56.)

We have read the testimony and upon a full consideration of it we cannot escape the conclusion that it fully warrants the finding made by the chancellor that at the time appellee executed the release he did not have competent and independent advice and the transaction was not fair or just; that in consequence thereof appellee is entitled to have said release vacated and canceled.

Before the bill of complaint in this cause was presented, appellee presented a bill of complaint as administrator of the estate of Sadie Fry, deceased, praying for an accounting and seeking* to subject the same assets to the control of the court of probate in the estate of Sadie Fry, deceased. This bill was dismissed. It is now contended by appellants that the decree of dismissal of the former bill was res adjudicata of the matters set out in the present bill of complaint. We cannot agree with this contention. The assets involved in this trust never became a part of the estate of Sadie Fry, deceased, but passed directly under the trust agreement. Before the doctrine of res adjudicata can be invoked, it must appear that the adjudication relied upon was between the same parties, suing or defending in the same capacity, upon issues that are identical, and the relief sought must be identical. (Cramer v. Wilson, 202 Ill. 83, 92; City of Chicago v. Partridge, 248 Ill. 442, 446.)

Some question is raised in the case as to the following* clause in the trust agreement: “Provided, however, that in the event the said H. C. Pence shall deem it for the best interest of the said trust fund he shall . have full power and discretion to make such payments or advances from said principal funds but only upon the written request of the said Sadie Pence Warren.” It is sufficient answer to this contention that neither party to the trust agreement ever sought to transfer any part of the principal of the estate to the donor, or that it would have been possible or proper, except in case of an emergency, in which both parties should concur. Preceding said clause and as a part of it there is a clause as to the said trustee paying income, “if such funds be available, and in the opinion of said H. C. Pence such payments are necessary or desirable; but the title to said income shall be in the name of H. C. Pence, trustee, until actually transferred and paid over to the said Sadie Pence Warren and the receipt from the said Sadie Pence Warren of such funds as shall be paid to her, shall be an acquittance to the said H. O. Pence for the moneys so paid over to her,” showing plainly that it was the intention of both parties to the trust that neither said trust fund nor the income thereof in the hands of said trustee, should be subject to assignment, sale, transfer, levy of execution or legal lien, by reason of any assignment, debt or obligation of the said Sadie Pence Warren.

Finding no error in the record, the decree of the circuit court of Christian county is affirmed.

Affirmed.


author: Mr. Justice Eldredge

text:
    Helen Cook, Appellant, v. Connelly Chevrolet Company, Appellee.
    Gen. No. 8,445.
    Opinion filed January 26, 1931.
    Rehearing denied April 10, 1931.
    A. M. Fitzgerald and H. C. Moore, for appellant.
    Brown, Hay & Stephens, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Helen Cook, appellant, brought her action against Connelly Chevrolet Company to recover damages resulting from an automobile accident. A verdict was rendered finding appellee not guilty on which judgment was entered.

On September 14, 1929, one T. R. Blivens and his wife went to the place of business of the Connelly ’ Chevrolet Company, appellee, in the City of Springfield, which was selling Chevrolet automobiles, for the purpose of purchasing a Chevrolet car. M. W. Tetter was a salesman in the employ of appellee in the sale of cars. • In order to demonstrate the car for the purpose of making the sale Yetter drove the car, accompanied by Blivens and his wife, on Fourth Street until they approached Cook Street where Blivens exchanged seats with Yetter and the former commenced driving the car, Yetter sitting beside him on the front seat. As they approached the intersection of Fourth and Ash Streets a collision occurred between the Chevrolet car driven by Blivens and a car driven by appellant whereby appellant was injured.

On the trial the court gave to the jury the following instructions:

“(8) You are instructed that unless you believe from the evidence that some agent, servant or employee of the defendant was guilty of some negligent act as charged in the declaration which contributed to the accident, the plaintiff cannot recover against this defendant and you should find the defendant not guilty.”

“(11) You are instructed that if you believe from the evidence that T. B. Blivens just prior to and at the time of the accident was operating the Chevrolet automobile in question in this case for the purpose of testing the same to determine if he would purchase the car, then as a matter of law the said T. B. Blivens was not an agent, servant or employee of the defendant company and the defendant is not chargeable with any negligent act committed by the said T. B. Blivens, if any be shown by the evidence. ’ ’

In effect these instructions directed the jury to find appellee not guilty and directly raise the question of law as to whether appellee was responsible for the negligence of Blivens, if any there was, in driving the car in question. It is contended by counsel for appellee that the relationship between the Connelly Chevrolet Company and Blivens was that of bailor and bailee. It was proven that it was the duty of Yetter, in the regular course of the business in which he was employed, to demonstrate cars to prospective purchasers. There could not be any bailment because no possession of the car was ever delivered by appellee to Blivens. Tetter was in the car as a servant of appellee and had possession and full control of the same at all times, and Blivens was simply driving the car at the time of the accident with the consent of Tetter as a part of the demonstration of the car. As a general proposition of law “the owner of a motor vehicle is ordinarily held liable for the negligence of one who is not in his employ but who is driving his car with the knowledge and consent and in the presence of his agent or employee and upon his business, although the agent or employee has no authority to engage an assistant or to permit another to drive, and even though he has been ordered not to permit others to drive the car.” 42 Corpus Juris, p. 1096, sec. 858. In this case there is no question but that Tetter was acting in the course of the business of appellee and that in the furtherance of his duty in demonstrating the car to Blivens, a prospective purchaser, he could in his discretion permit Blivens to operate the car. It is further stated as a proposition of law in Corpus Juris, supra:

“The owner of an automobile is liable for the negligence of a prospective purchaser in driving the car under the direction and guidance of an employee of the owner. ’ ’

The Supreme Court of Alabama held in the case of Emison v. Wylam Ice Cream Co., 215 Ala. 504:

“We do not approve the doctrine that a servant can, without authority, abandon the master’s service, and substitute another person in his place, so as to make the master responsible for the acts of the substituted servant. But, when the servant has been intrusted with an instrumentality which he is instructed to use in the prosecution of the master’s business, we think it is sound both in principle and in policy to hold the master responsible for the servant’s injurious use of that instrumentality in the performance of his authorized service, even though the servant had intrusted the particular service to the hands of a third person who was acting for him and under his direction; and, in such case, we can recognize no valid distinction between a case where the servant was present with his assistant at the time and place of the accident and a case where the servant was elsewhere. In each case the servant uses the instrumentality for the purpose intended and authorized, and in each case the directed act of his assistant is equally the act of the servánt. ’ ’

In the case of Doyon v. Massoline Motor Car Co., 98 N. J. L. 540, the trial court charged the jury in substance that:

“It makes no difference which one of these men, Musante (the prospective purchaser), or Hvozdik (the salesman) was operating the automobile, because the car was being demonstrated by Hvozdik for Musante, the probable purchaser; that the car was being driven under the direction and guidance of Hvozdik who was the employee of the owner; the circumstances in this case are such that if either Hvozdik or Musante was negligent in the operation of this automobile, the defendant is responsible for that negligence.”

The Supreme Court in discussing the propriety of this charge said:

“We are also of the opinion that the trial court ruled and charged the jury properly on the subject of the responsibility of the dealer for° the operation of the automobile. Hvozdik, the demonstrator, was acting within the scope of his employment and in pursuance of the custom of his employer in permitting Musante to drive the car. It was a part of the demonstration. It was done to promote the sale of the car. Musante was driving under the direction of Hvozdik. So far as the dealer ^.responsibility was concerned, it made no difference whether Hvozdik was driving the car or Masante, as under the circumstances, each, when driving, was the agent of the dealer.”

In our opinion under the circumstances shown by the evidence in this case appellee was responsible for any injuries to appellant caused by the negligence of Blivens in the driving of the car and that the question whether there was any such negligence should be submitted to the jury to determine.

The trial court erred in giving the eleventh instruction on behalf of appellee and the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.