text:
    Edith L. Belding, Individually and as Administratrix of the Estate of Wilbert D. Belding, Deceased, Appellee, v. Edgar E. Belding and Harlow H. Belding, Appellants.
    Gen. No. 8,674.

      Opinion filed September 20, 1933.
    Rehearing denied November 9, 1933.
    Thoma, Linden & Hutchinson, for appellants; Geo. W. Thoma, of counsel.
    Sylvester E. Quindry and Walter E. Moss, for appellee ; B. Blakeney Harris, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellee brought this suit by virtue of the Uniform Partnership Act (Cahill’s Ill. St. ch. 106a) for an accounting and settlement division of partnership property. She instituted said proceedings individually, and as administratrix of the estate of her deceased husband, Wilbert D. Belding. The facts disclose that on or about February 25, 1918, a partnership agreement was made and entered into in writing between Edgar E. Belding, the father, and his two sons, Wilbert D. Belding and Harlow H. Belding. Edgar E. Belding and Harlow H. Belding are appellants herein. The copartnership agreement provided, among other things, that the firm name would be, “Edgar E. Belding & Sons”; and that the interests of the respective parties in the profits to be realized from the partnership business were to be 60 per cent to the father, Edgar E. Belding, 20 per cent to Wilbert D. Belding and 20 per cent to Harlow H. Belding; the -agreement further provided that the father, Edgar E. Belding, should be the head of the firm. The firm was organized for the purpose of engaging in a general contracting business, consisting of moving, remodeling, and construction of houses.

The copartnership continued to operate under this agreement until the death of Wilbert D. Belding on September 19, 1928. The partnership enjoyed a successful financial experience, and, prior to the death of the aforesaid member, had accumulated and acquired considerable property in the nature of real estate holdings and equipment.

The appellee brought her bill to the October Term, 1931, of the circuit court of Du Page county, against Edgar E. Belding and Harlow IT. Belding-, individually and as surviving partners of the aforesaid copartnership. The bill made certain other parties defendants, as tenants or otherwise, none of whom are parties to this appeal. The-bill sets out that the surviving partners had continued in the possession of the property and effects of the partnership and had continued to carry on the partnership business, under the partnership name, from the date of the death of Wilbert D. Belding, on September 19, 1928, up to the time of the filing of this bill. The bill further charges that the appellants had failed and refused to account to appellee for the share of the said Wilbert D. Belding in the property, effects and assets of the partnership, although demand therefor had been made from time to time. The bill sets out various tracts of real estate that had come into the ownership of the partnership, following its organization, together with other assets and effects, all of which had accrued to the partnership since its organization and from the earnings and profits thereof. The bill prays for an accounting by the appellants in respect to the property, effects, and assets of the copartnership business of the firm of Edgar E. Belding & Sons, and that the rights and interests of the parties may be ascertained; and that a division, partition, and distribution settlement he had according to the rights of the parties; and claiming that the share of Wilbert D. Belding in the copartnership property at the time of his death was an equal one-third with the appellants herein; alleging that the original articles of partnership had been changed or modified to provide that each of the partners was to have an equal one-third interest and share in all of the partnership property, real, personal, or otherwise. Appellants in their answer, among other things, deny that the copartnership agreement had ever been modified, so that the partners should share equally in the profits and in the property of the firm that had been acquired from the earnings thereof; and deny that Wilbert D. Belding, at the time of his death, was entitled to a one-third share in such partnership property, but allege that the original articles of partnership remained the same in that respect and that the share of the deceased partner was 20 per cent and no more. Appellants also deny certain valuations upon real estate that the bill alleges, and rental incomes from partnership properties, as the same were set up in the bill of complaint. We do not deem it expedient to go into further detail regarding these matters, because the matter was referred to a master for an accounting and determination of all such estimated values of real and personal property and of rents and profits.

As above stated, the cause was referred to a master for an accounting and report. The master in his report fixed the values of the various properties, effects and assets of the partnership as of the time of the death of the deceased partner. The master further found that subsequent to the death of the partner, Wilbert D. Belding, on September 19, 1928, and prior to the hearing by the master, 18 separate construction contracts had been completed by the partnership firm of Edgar E. Belding & Sons, and that the total net profits realized on the 18 contracts was the sum of $4,915.52; and further found that an equal one-third of said sum was due and owing to the appellee herein. The master further found by his report, “that said original co-partnership articles had become and were modified at the time of the death of the said Wilbert D. Belding, either by oral agreement or by mutual consent, so that each partner was entitled to receive one-third of the net profits of the business of said co-partnership.” After the master arrived at the total valuation of all the property of the partnership, including the profits that accrued between the time of death of the deceased partner and the accounting, he found that a full one-third thereof was due to appellee and allowed interest thereon at five per cent per annum, frqm September 19, 1928 (death of said deceased partner) to October 4, 1932, the date of his report. To the master’s report, the appellee herein filed 19 exceptions, all of which were overruled by both the master and the trial court. The appellants filed eight exceptions to the master’s report, which were overruled by the master. The court, however, sustained appellants’ exceptions 1 and 2, in part, to the report of the master, and overruled appellants’ exceptions 3 to 8 inclusive. Appellants’ exceptions 1 and 2 were not directed toward the modification of the articles of copartnership, the granting of the right to appellee to participate in the earnings of the partnership after her husband’s death, or her right to receive five per cent interest upon the value of his share in the partnership property. Appellants’ exception No. 3 to the master’s report was directed toward the alleged modification of the original articles of copartnership; their exception No. 4 was based upon the right granted to appellee to receive a full one-third of the partnership profits in 18 construction contracts that were completed between the time of her husband’s death and the report of the master; their exception No. 6 was directed toward the allowance to the appellee of five per cent interest upon the one-third value of the entire property and assets of the copartnership, from the death of the deceased partner to the date of report of the master; their exception No. 8 is general and is directed toward the finding by the master that all the material allegations in the complainant’s bill had been proven, and recommending entry of decree accordingly.

The other contentions of the parties and exceptions to the master’s report are directed toward the valuation of partnership property as fixed and determined at the hearing. The exceptions and the evidence have been gone into carefully, but their number and the extent of the evidence do not permit a discussion of them in this opinion. We find no error in the court’s ruling upon the exceptions filed to the master’s report by Edith L. Belding, appellee herein.

Appellee in this suit, by virtue of section 42 of the Uniform Partnership Act, Cahill’s St. ch. 106a, H 42, seeks to have the value of her deceased husband’s interest in the partnership business fixed and determined as of the date of his death, and to receive from the surviving members of the partnership and from the partnership, as an ordinary creditor, an amount equal to the value of her deceased husband’s interest therein as so determined, with interest thereon from the date of his death; and in addition thereto, to receive a full share of the earnings and profits that accrued to the partnership after the death of her husband and prior to this hearing. As we construe section 42 of said Act, when the surviving partner or partners continue to carry on the partnership business after the death of one of the partners, without liquidation of the partnership affairs and without the consent of the deceased partner’s legal representatives, then such legal representatives of the deceased partner’s estate may have the value of such deceased partner’s share ascertained as of the date of such partner’s death, and shall receive as an ordinary creditor an amount equal to the value of such deceased partner’s share in the dissolved partnership, with interest; or, at the option of such legal representatives, may receive in lieu of interest the profits that have accrued io the partnership firm between the time of death of the deceased partner and the time of the partnership settlement. It appears from the evidence that the surviving partners, the appellants herein, did continue to carry on the business of the copartnership after the death of Wilbert D. Belding, without any liquidation of partnership affairs, from the time of his death to the bringing of this bill in October, 1931. Under such circumstances, we are of the opinion that the appellee, as executrix of the estate of the deceased partner, had the right to bring this bill; and that under the facts and circumstances in this case, after the value of the deceased partner’s share in said partnership had been ascertained, to receive thereon either interest from the time of his death to the time of the partnership settlement,, or in lieu of interest to participate in the profits and net earnings of the partnership from the date of death of the deceased partner to the time of the partnership' settlement with said estate; but the appellee is not entitled to receive both interest and a share in the partnership earnings, as is granted her in the decree of the trial court herein. Consequently it was error for the decree to grant to appellee the right to receive from appellants interest at five per cent upon the value of her deceased husband’s share in the partnership, and also to permit her to participate in the partnership profits during the time between his death and the hearing herein.

The trial court by its decree approved and confirmed the master’s report concerning the modification of the original articles of copartnership, and decreed that the written articles of copartnership, either by oral agreement or mutual consent, had become and were modified at the time of the death of Wilbert D. Belding, so that each partner was entitled to receive one-third of the net profits of the business of the copartnership.

The court by its decree found that the total assets of the partnership were $74,074.24, which amount of assets included the sum of $4,915.52, representing the profits on 18 construction contracts, which were executed after the death of appellee’s husband. The court then finds that the total liabilities of the firm were $20,929.79, which left a net worth of $53,144.45; and the court decrees that the appellee as executrix of the estate of the deceased partner, Wilbert D. Belding, is entitled to an equal one-third share in the total net worth of the partnership property and assets, which one-third share is fixed at $17,714.81. The court further found that the one-third share decreed appellee was subject to total deductions of $7,127.11, for advancements by the partnership to the deceased and to the appellee following his death and prior to the bringing of this suit. The court then decreed that there was due appellee a net balance of $10,587.77, with interest thereon at five per cent per annum, from September 19, 1928 (death of said partner) to October 4, 1932 (date of master’s report) which interest item was fixed at $2,139.59, this making a total of principal and interest due appellee under the decree of $12,729.29.

The evidence does not disclose when or how the original articles of copartnership were modified and the decree does not so find. Appellee urges that since the articles of copartnership provided that the partners would each receive wages at the rate of 65 (S per hour, and since at the time of the death of Wilbert D. Belding, the partners were paying themselves wages of $1.25 per hour, that this was proof that the articles of agreement had been changed. The amount of wages that .the partners received for their labor had no connection with their interest in the copartnership profits. The contract as made between them in 1918, provided that they should each receive 65(6 an hour and it further set out the respective rights of the parties to the profits to be realized from the operation of the business. It is manifest therefore, that the wages had nothing to do with the respective interests of the partners in the firm profits. The mere fact that they had increased their hourly wage to $1.25 per hour in 1928, had no more bearing upon the provision regarding the interest of the partners to share in the firm profits, than the 65(6 wage scale had in 1918. The articles of copartnership provided that the losses and liabilities would be shared by each member of the firm in the same proportion as the net profits were shared, which made the father liable for 60 per cent of the losses and liabilities, and each of the sons liable for 20 per cent.

The fact that the wage scale for each of the three partners was equal in the original articles of copartnership, as made in 1918, in no way affected or controlled their right to share in the firm profits. Therefore, the fact that the wage scale had been increased to $1.25 an hour, for each of the partners in 1928, has no more bearing on their respective rights to share in the firm profits than the wage scale as originally fixed at the time of the written agreement. Written agreements are solemn and binding instruments and should not lightly be changed or disturbed by parol evidence. Only under the most positive, convincing and definite proof should such changes be permitted. We do not find anything in the evidence and circumstances in this case sufficient to overcome the written agreement of copartnership, which stood in its original form at the time of the death of Wilbert D. Belding, or which permits the court to hold that the original agreement had been changed or modified so that the deceased partner owned a one-third share of the firm property at the time of his death. The court erred in decreeing that the deceased partner was entitled to a one-third share of the property at the time of his death, and that the appellee should receive a full one-third share of the partnership property and assets because of the rights of her deceased husband thereto.

Appellants make 21 assignments of errors and the appellee 19 assignments of cross errors, all of which have been considered in the determination of this suit. The record in this case has been carefully considered, but due to its extent, it is impossible to discuss the many items of controversy between the parties, in this opinion. To do so would extend it beyond reasonable length. The trial court erred in two respects: first, in holding that the appellee was entitled to receive interest upon the value of her deceased husband’s share of the partnership property from September 19, 1928 (the date of his death) to October 4, 1932 (date of master’s report) in the sum of $2,139.59, after having already permitted appellee to share in the firm profits that had accrued on 18 separate contracts, completed after the death of her husband, and prior to the hearing before the master. It was error to decree any interest money to appellee after permitting her to participate in the firm profits, which accrued subsequently to her husband’s death. Second, in decreeing that the partnership agreement had been modified either by oral agreement or mutual consent at some time prior to the death of Wilbert D. Belding, so that he was entitled to an equal one-third of the net profits and property of the copartnership.

We do not believe that any good purpose would be served by a general reversal and remanding of this case. The record is large. A general rehearing would be costly tb the parties involved. The costs of the hearing before the master in this case amounted to $773.75, which were taxed against the appellants together with all other costs of the case. This partnership firm had many transactions between its inception in 1918 and the hearing before the master in 1932. There is no reason to believe that the values which would be fixed for the various tracts of real estate and of the equipment and effects of the firm would be any more equitable or agreeable to the parties upon another hearing than those values as fixed and determined by the master in this case. There were many transactions to be gone into by the master in dealing with the business of this firm and in making this accounting, and in ascertaining the values of the various properties of the partnership. There is no reason to believe from the evidence herein that the values of those items as fixed by the master are not fair and equitable to all parties concerned.

We have stated our conclusions herein to the effect that the evidence does not demonstrate that any change had been made in the original articles of copartnership with respect to the percentage of profits each partner was to receive; and further, that since the profits of the partnership accruing between the death of the deceased partner and the hearing of this case had been included in arriving at the total assets of the firm and the appellee permitted to share therein, no interest money was due appellee under the statute.

The decree is affirmed as to all matters except the two above named, and with respect to these matters, the decree is reversed, and remanded with specific directions to modify said decree to provide that Wilbert D. B elding at the time of his death, was entitled to and owned 20 per cent of the partnership property and assets, and that instead of his share being fixed at one-third or $17,714.81, that it be fixed at the value of 20 per cent of the total net worth arrived at, or the sum of $10,628.89; and that from the last named sum the deduction of $7,127.11 be taken, as this amount has already been advanced to appellee or her deceased husband; and that appellee be entitled to receive the sum of $3,501.78, without interest.

For the foregoing reasons, the decree is affirmed in part, reversed in part, and remanded with directions to modify same to conform to the views herein expressed.

One-half of the appellants’ costs of this appeal will be taxed to and paid by the appellee, and the clerk of this court is ordered to tax same accordingly.

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


source: Caselaw Access Project

author: Mr. Justice Huffman

license: Public Domain

text:
    Lucy Avey, Appellee, v. W. A. Medaris, Appellant.
    Gen. No. 8,679.

      Opinion filed September 20, 1933.
    Rehearing denied November 9, 1933.
    William D. Knight, for appellant.
    Hall & Dusher, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellee recovered judgment against appellant in the circuit court of Winnebago county, in the sum of $2,388, for personal injuries received by appellee in a collision of an automobile in which appellee was riding, with an automobile then being operated by one McNaughton. Appellee charged that the appellant’s negligence was the proximate cause of said collision, and of her injuries resulting therefrom. It was maintained by appellee that appellant negligently stopped his automobile upon State Highway No. 2 in such a careless manner as to cause the collision.

The evidence shows that appellee sustained various injuries, from which she was confined in the Rockford Hospital, in the City of Rockford, Illinois, for a period of two months. Appellee sustained a broken knee joint and kneecap. This fracture was not reduced until 12 or 14 days after appellee was admitted to the hospital. An operation on the knee was necessary to reduce this fracture. Appellee was injured in the face and back, and complained of pains in these regions at the time of her entrance to the hospital. She still suffers from pains on the right side of her back and in her right hip, and has an impaired use of her knee.

This case has been tried twice, and both juries have found the same way upon the facts. It is not possible to reconcile the testimony of the defendant with that of the plaintiff. It was the function of the jury to pass upon the facts in the case, and unless it can be said that the verdict is against the manifest weight of the evidence, the verdict should stand, providing errors of law have not been committed sufficient to cause reversal. Shearer v. Aurora, E. & C. R. Co., 200 Ill. App. 225. The testimony offered by appellee, when considered alone, fairly authorized the verdict. In such cases, courts will not reverse a judgment, when it is not manifestly against the weight of the evidence. Blackhurst v. James, 304 Ill. 586.

The court of review has no right to substitute its opinion for that of the jury in cases of this nature, so long as the verdict of the jury is supported by sufficient evidence. Where the testimony is hopelessly in conflict, the jury must believe one side of the case and disregard the other, in order to arrive at a verdict. Under such circumstances, the prevailing party is entitled to all the favorable inferences legitimately arising from the evidence and the verdict should remain undisturbed, unless it clearly appears that it was the result of passion or prejudice, or is contrary to the clear weight of the evidence. Dick v. Zimmerman, 105 Ill. App. 615.

Appellant urges the court erred in giving instruction No. 2, offered by the plaintiff below, claiming that it led the jury to believe that appellant had no right to cross the road from the east to the west side of the pavement. The instruction set out certain provisions of the Motor Vehicles Act, Cahill’s St. ch. 95a, with respect to highways. We do not believe it is open to the objection urged by appellant. Appellant also complains of the refusal to give appellant’s instruction No. 2 to the jury. This instruction is based upon the duty required of appellee to exercise ordinary care for her own safety, and to warn the driver of any danger that she saw approaching. The evidence in this case shows that appellee had no warning of the approaching danger; that the collision happened so quickly, there was no warning period. It further appears that her husband, with whom she was riding, saw and was aware of the situation simultaneously with the appellee and that he used his best efforts to avoid the collision. Since knowledge of the approaching danger on the part of the driver was equal to and originated with that of appellee, the appellee could not have warned the driver of something of which he was already aware.

Defendant’s given instructions covered the question of negligence on the part of the plaintiff below, and the jury was advised that she must be in the exercise of due care for her own safety, at and just prior to the time of the collision in question. Where correct instructions given on the trial of a case cover all the law involved, a refusal to give a requested instruction by a party, though it may contain correct propositions of law applicable to the case, is not reversible error. Shearer v. Aurora, E. & C. R. Co., 200 Ill. App. 225. Under all the facts and circumstances in the case, and in considering all the given instructions as a series, we are unable to say that the jury was not fairly instructed as to the law or that the refusal to give defendant’s instruction No. 2 was reversible error.

Objection is also made by appellant to the testimony of Dr. Ackemann, an X-ray specialist, who took a picture of appellee shortly before the trial of this case. The doctor was permitted to testify to appellee’s condition as reflected and disclosed by the X-ray picture. Appellant urges that this was error because the picture was taken considerable time after the injuries were received and that this doctor did not treat appellee following the accident. This evidence could only go to prove the nature and extent of the injuries, about which competent proof was shown by the attending physician at the hospital. The nature of appellee’s injuries, as shown by the surgeon who treated appellee at the hospital, is undisputed. Appellant does not assign as error that the verdict is excessive, and errors not assigned are not open to review. Berry v. City of Chicago, 192 Ill. 154.

There is nothing to indicate that the verdict of the jury was the result of passion or prejudice, and the damages cannot be said to be so grossly excessive within themselves, as to demand a reversal of this case. The amount of damages awarded not being claimed excessive by appellant, and not being for such a grossly extravagant sum as to be self-evident that the jury could not have been actuated by proper motives, this court is unable to say that the same are either excessive or against the weight of the evidence. Wilson v. Baltimore & O. S. R. Co., 158 Ill. App. 604.

The alleged negligence of the appellant was the gist of the action. The evidence showed that appellee received injuries as a result of the accident, which confined her to the hospital for two months. The jury found from the evidence that appellant’s negligence was the proximate cause of appellee’s injuries. The testimony of the doctor concerning the X-ray picture in no way tended to prove whose negligence was responsible for the accident.

In the state of the evidence, it cannot be said that the jury was unwarranted in returning the verdict which it did. The jury heard the witnesses testify, and where the questions of defendant’s negligence and of contributory negligence on the part of the plaintiff are in dispute, they are proper matters for the jury to determine, and courts of review will not disturb the verdict unless the finding of the jury is clearly contrary to the evidence.

No error being shown in the record, the judgment of the trial court is affirmed.

Affirmed.


author: Mr. Presiding Justice Wolfe

text:
    Elmer Doty, Appellee, v. Charles L. O'Neill and E. T. O'Neill, Trading as O'Neill Brothers, Appellants.
    Gen. No. 8,669.

      Opinion filed October 24, 1933.
    W. H. Dyer and Gower, Gray & Gower, for appellants.
    Anker C. Jensen, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The parties to this appeal are creditors of one J. L. Schmeltzer. They controvert in this action the right to the proceeds of the sale of a part of their debtor’s personal property. The property was sold at public auction under a chattel mortgage given by Schmeltzer to the appellants. In a justice’s court the appellee obtained a judgment against the appellants, who are doing business under the name of O’Neill Brothers, for $274.50, which was the amount obtained at the sale for the property. Upon appeal to the circuit court of Kankakee county there was a verdict and judgment for the appellee for the same amount.

The appellee claims that he was the owner of the property under a bill of sale given to him by Schmeltzer before the execution of the mortgage. These two documents were given by Schmeltzer for his preexisting debts to these parties. The bill of sale is dated and was signed by Schmeltzer on February 20, 1931. The mortgage is dated February 16, 1931, the acknowledgment thereof is dated February 23, 1931, and it was recorded on February 24, 1931. The evidence is in direct conflict on the questions as to whether the mortgage and note were signed on February 22, or" February 23, 1931, and whether Schmeltzer acknowledged the mortgage before the justice of the peace whose name appears to the acknowledgment.

It is maintained by the appellants that the bill of sale was in fact given as security for the debt due the appellee and it is in legal contemplation a chattel mortgage and void because not recorded as required by law. However, these questions of fact, and all assignments of error not going to the merits of the case, will, for the present, be laid aside so that the position and rights of these parties may be determined as they are fixed by the Uniform Sales Act, Cahill’s St. ch. 121a, IT 4 et seq., which, irrespective of the facts, is relied upon by both parties to sustain their respective rights to the personal property and the proceeds thereof.

The appellee did not at any time take possession of the property mentioned in his bill of sale, although it consisted of farm implements and machinery capable of delivery and removal. Neither did the appellee in any manner by hiring to Schmeltzer, by notice, nor exercise of dominion of ownership of the property, give any outward manifestation of his ownership of the property. So far as the record shows, the property remained in the sole, exclusive and open possession and use of Schmeltzer, until it was sold under the mortgage on February 29, 1932.

The appellee contends that the evidence shows that Schmeltzer, before he signed the mortgage, told the appellants that the appellee had a bill of sale for some of the chattels described in the mortgage. Also, the appellee argues that regardless of whether the appellants had knowledge of the existence of his bill of sale, under the rule of section 19 of the Uniform Sales Act, Cahill’s St. ch. 121a, IT 22, the title to the chattels was transferred to the appellee by the bill of sale, although possession of the chattels was retained by Schmeltzer; that under sections 20 and 23 of said Act, Cahill’s St. ch. 121a, ¶¶ 23 and 26, Schmeltzer could transfer no better title than he had, and having executed the bill of sale, he had no title to transfer by chattel mortgage. It is also argued by the appellee that said section (and he relies in particular on said rule 1 of section 19) changes the rule of law existing in this State before the passage of the Uniform Sales Act, viz., that a sale of personal property when the seller retains possession of the chattels is deemed fraudulent as to creditors of the seller without notice to the sale. Jacobson v. Patterson, 190 Ill. App. 266.

The appellants maintain that under sections 25 and 26 of the Sales Act, Cahill’s St. ch. 121a, ¶¶ 28 and 29, the retention of the possession of the goods by Schmeltzer after the execution of the bill of sale is deemed fraudulent under the rule of law of this State, and a creditor of Schmeltzer may treat the bill of sale as void.

Under-the instructions given to the jury by the trial court, the correct construction of these sections of the Sales Act is the crux of the case, and thereupon depends the determination of the rights of these parties to the proceeds of the sale of the personal property in dispute, subject, however, to the question of fact as to whether the appellants had knowledge of the bill of sale when the chattel mortgage was executed.

On behalf of the appellee the court instructed the jury that section 19 of the Uniform Sales Act, Cahill’s St. ch. 121a, Ü 22, provides that where there is an unconditional contract to sell specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed.

On behalf of the appellants the court instructed the jury that where a buyer of personal property, capable of immediate delivery, suffers the same to remain in the possession of the seller and another party in good faith and without notice of the former sale, takes a chattel mortgage upon the same property and obtains actual possession of the property by foreclosure and sale under the mortgage, the person who first bought the property and did not take possession of it, has no rights in the property, or the proceeds thereof, after such foreclosure sale, etc.

Under the material facts in this case these two instructions are contradictory and irreconcilable. This being true, it cannot be said that there has been a full and fair trial of the issues of the case. We are of the opinion that the giving of the instruction for the appellee was erroneous in this case, although it is substantially in the words of the statute.

Bule 1 of section 19 of the Sales Act, Cahill’s St. ch. 121a, If 22, is given as a guide to ascertain the intention of the parties to a sale, when the subject matter of the sale is personal property and the title to same is to be considered as passed to the buyer, if their intention is not apparent from the contract of sale. Such intention of the parties to the sale, if undisclosed or unknown to creditors of the seller, cannot affect the rights of such creditors. This view of said rule clearly appears from the first paragraph of section 19, which is as follows: “Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.”

The transfer of title to goods by sale so far as the rights of the creditors of the seller are concerned, is provided for in sections of the Sales Act appearing subsequent to section 19 thereof, as will hereinafter appear. An examination of the session laws of 1915 shows that Part Two of the Act is entitled, “Transfer of Property as Between Seller and Buyer. ’ ’ Said section 19 appears under Part Two and is headed, “Buies for ascertaining intention.” Rule 1 is a restatement of the rule at common law that title may pass between the parties to the sale, although possession is retained by the seller. No cases have been cited holding that said rule is to be applied when the rights of creditors of the seller are involved. John B. Frey Co. v. Silk, Inc., 245 Mass. 534, 140 N. E. 259; Bank of Italy v. Merchants’ Nat. Bank, 185 N. Y. S. 43; Idaho Products Co. v. Bales, 36 Idaho 800, 214 Pac. 206; Cassinelli v. Humphrey Supply Co., 43 Nev. 208, 183 Pac. 523.

It is erroneous to conclude that said Rule 1 alters the rule existing for many years in this State, that if the seller remains in possession of the goods, the sale is fraudulent as to creditors of the seller without notice of the sale. (Jacobson v. Patterson, supra.) Cases decided since the passage of the Uniform Sales Act have adhered to the rule existing before the enactment of section 19. Smith v. Knemoeller, 204 Ill. App. 606; Grimes v. Rodgers, 263 Ill. App. 429; Hallet & Davis Piano Co. v. Starr Piano Co., 85 Ohio St. 196, 97 N. E. 377. The correctness of this conclusion will further appear when section 26 of the Act, Cahill’s St. ch. 121a, ¶ 29, is hereinafter considered.

Schmeltzer did not reserve the right of possession of the goods transferred by the bill of sale to the appellee, and that alone is sufficient to eliminate section 20 of the Act, Cahill’s St. ch. 121a, ¶ 23, from consideration.

Section 23 of the Sales Act, Cahill’s St. ch. 121a, ¶ 26, provides: “ (1) Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.

“(2) Nothing in this Act, however, shall affect

“(a) . . . any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof.”

By section 26 of the Act, Cahill’s St. ch. 121a, ¶ 29, it is enacted as follows: “Where a person having sold goods continues in possession of the goods, or of negotiable documents of title to the goods, and such retention of possession is fraudulent in fact or is deemed fraudulent under any rule of law, a creditor or creditors of the seller may treat the sale as void. ’ ’

Construing section 26, the courts of the various States where the Uniform Sales Act is in force have followed the rule of their own State, that retention of possession of goods by the seller is deemed evidence of fraud upon creditors of the seller. This evidence is conclusive, or rebuttal, according to the pre-existing rule in the State where the question is decided. Shipler v. New Castle Paper Products Corp., 293 Pa. 412, 143 Atl. 182; Freedman v. Avery, 89 Conn. 439, 94 Atl. 969; Holley v. Haile Motor Co., 177 N. Y. S. 429.

We are, therefore, of the opinion that the appellants obtained a valid title to the personal property in question under their recorded chattel mortgage if they had no knowledge of the existence of the bill of sale. The jury should have been so instructed.

The appellants having obtained possession of the goods under their chattel mortgage, it is not material if the mortgage was acknowledged or not. First Nat. Bank of Crockett v. Barse Live Stock Commission Co., 198 Ill. 232; Southern Surety Co. v. Peoples State Bank, 243 Ill. App. 195, rev’d 332 Ill. 362. This will dispose of the errors assigned as to the court erring in admitting and rejecting evidence. The question of fact as to whether the appellants had knowledge of the existence of the bill of sale before accepting the chattel mortgage not having been fairly submitted to the jury, we cannot say that the verdict is contrary to the manifest weight of the evidence.

That a pre-existing debt is a good consideration of a transfer of property by the debtor to one of his creditors, and that the debtor may so prefer a creditor to the detriment of his other creditors is established by the following cases: Kranert v. Simon, 65 Ill. 344; Butters v. Haughwout, 42 Ill. 18.

The judgment of the circuit court of Kankakee county is hereby reversed and the case remanded.

Reversed and remanded.


text:
    George M. Reuss, Appellee, v. Charles E. Nixon et al., Appellant.
    Gen. No. 8,676.
    Opinion filed October 24, 1933.
    Heile, Cavender, Milchrist & Kaiser, for appellant.
    Benjamin A. Piper, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The parties to this appeal have agreed upon a stipulation of facts. In order to understand the controversy between the parties it is advisable to make a general statement of the case. The proceeding is in equity. The suit presents, the question whether a grantee takes land, subject to a judgment lien, where, prior to the execution of the deed and judgment, his grantor has by a duly recorded and subsisting contract, which provides for instalment payments of the purchase price, agreed to sell the land to a third person, but at the time for the execution of the deed there is a judgment on record against the grantor which would be a lien on the real estate of the grantor, if no such contract of sale had existed. Was the legal title of the grantor to the land, after the execution of the contract of sale, subject to the lien of the judgment so that the judgment creditor in this case, may, in equity, sequester, or secure to himself, any unpaid part of the purchase price in satisfaction of his judgment ?

The question whether a judgment is a lien on the vendor’s title after the execution of a contract of purchase, has been before the courts in many cases. Authorities are cited in the briefs, some of which affirm that the judgment is a lien on the legal title of the vendor, and a few others denying that the judgment is a lien on the vendor’s title. The question is discussed in 15 R. C. L. 803; in the notes to the case of Filley v. Duncan, 1 Neb. 134, reported in 93 Am. Dec. 337; Warvelle on Vendors, 203; 34 C. J., sec. 916, page 598. Appellee cites Lynch v. Eifler (Abst.), 191 Ill. App. 344, which was an action at law.

Stating the facts from the stipulation, Albert Ehrhart and William Ehrhart, being the owners in fee as tenants in common of 80 acres of land in DuPage county, in 1925 made a written agreement, in the nature of a lease, with Albert B. Bose and Irwin A. Bose. This contract was duly recorded on March 7, 1927. By the agreement the Boses were given the right to purchase the real estate on or before September 27, 1927, for the sum of $19,000, to be paid in instalments. The Boses duly exercised such right of purchase as provided in the contract. Thereupon, the Ehrharts and the Boses entered into a second agreement which provided for the sale of the real estate for the purchase price of $19,000 to be paid $1,000 as a cash payment and $1,000, or more, every six months thereafter until the sum of $10,000 was paid. This agreement also provided that when the balance owed upon said purchase price should be $9,000, the Boses would be entitled to a warranty deed from the Ehrharts conveying a merchantable title clear of all incumbrances, provided they executed a first lien mortgage to the Ehrharts for $9,000, securing their notes for $1,000 each, payable each year after date of the deed and mortgage. The notes wTere to bear six per cent interest. Time was made the essence of the agreement and it contains the usual forfeiture clause in such agreements. The agreement was made obligatory on the personal representatives, heirs and assigns of the respective parties thereto. The agreement was executed on August 19, 1927, and recorded in March, 1928.

In .February, 1928, Albert Bose assigned his interest in the contract of purchase and the real estate to said Irwin A. Bose, who has since remained in possession of the real estate. On March 1,1930, William Ehrhart by warranty- deed conveyed his one-half interest in the real estate to George M. Beuss. This deed was recorded on October 27, 1930. On May 27, 1932, Albert Ehrhart, by quitclaim deed conveyed his one-half interest in said real estate to the said George M. Beuss, who is the complainant in this suit.

On February 19, 1932, the past payment of $1,000 cash to be paid under the agreement of purchase was made by Irwin A. Bose, to Albert Ehrhart and G-eorge M. Eeuss, making a total of $10,000 paid by the Eoses on the purchase price of $19,000. Irwin A. Eose is ready, willing and able to perform his part of said agreement and to execute a mortgage and deliver his notes for $9,000 as provided in said agreement, upon the execution and delivery to him of a warranty deed conveying the real estate to him in fee simple, free and clear of all incumbrances, provided said deed is delivered within a reasonable time, and without prejudice to any right of Eose now existing in said agreement. G-eorge M. Eeuss is ready and willing to convey the real estate to Eose and accept from him his notes for $9,000 secured by said mortgage. Irwin A. Eose refuses to execute such notes and mortgage for the reason that he believes that certain judgments now standing of record against William Ehrhart are a cloud on the title of G-eorge M. Eeuss to said real estate.

Judgments were recovered against William Ehrhart in the circuit court of DuPage county as follows: Chicago & Northwestern Bailway on January 4, 1929, for $681.70; Broadway Trust & Savings Bank of Aurora, on October 11, 1929, for $7,229.17; Charles E. Nixon, on October 25,1929, for $1,353.82; Bartlett State Bank, on November 8, 1929, for $1,517.86; Julian Dieter and Edward G-etz, on January 24, 1930, for $1,012.77; Sinclair Defining Co., on February 27, 1930, for $200.44; Grant Dicke on September 24, 1930, for $281.17. Executions were issued on all of said judgments within one year after their entry and such executions have been returned no part satisfied, except the execution on the judgment of the Bartlett bank, which does not appear to have been returned.

After the entry of said judgments, Bose paid Albert Ehrhart and George M. Beuss five $1,000 instalments called for by his contract of purchase, namely: $1,000 on the following dates: February 19, August 19, 1930, February 19, August 19, 1931, February 19,1932. Before the entry of the first of said judgments the Boses had paid five $1,000 instalments, making a total of $10,000 before this suit was brought.

On May 31, 3932, George M. Beuss filed his bill praying that the said judgments be declared void and not liens against the real estate, and that the judgment creditors be enjoined from enforcing their judgments by execution. Charles E. Nixon, the appellant, is the only judgment creditor who appeared. The other judgment creditors were defaulted.

Nixon filed an answer and cross-bill. The cross-bill alleges that the judgment entered in favor of Nixon ' and against William Ehrhart on October 25, 1929, became and was a lien upon the legal estate and beneficial interest of said William Ehrhart in and to said real estate, from the date of the rendition of said judgment, and that said judgment has continued a lien thereon; that Nixon is entitled to receive and be paid all sums of money unpaid upon said contract, due or to become due to William Ehrhart to an amount sufficient to satisfy his judgment; that the claim of George M. Beuss in and to any money to be paid by Irwin G. Bose is subject and inferior to the lien or claim of Nixon; that if no sum of money is now due and owing then Nixon is entitled to have a receiver appointed to collect said sum or sums for the use of Nixon on his judgment.

The cross-bill prays that the court decree that William Ehrhart pay to Nixon the amount of his judgment, and in the event of default thereof, that Nixon may be permitted by'the court to collect and apply any sum or sums of money not due from Irwin A. Bose under Ms contract of purchase to William Ehrhart at the date of the decree; that the sums not now due may be collected under the direction of. the court and applied in satisfaction of Nixon’s judgment.

The chancellor rendered a decree finding that the liens of the judgment creditors did not attach to the mere legal title in William Ehrhart, and that the judgments, or any of them, are not liens on the real estate. The cross-bill was dismissed and the judgment creditors were enjoined from enforcing their judgments against the real estate by execution or otherwise.

The whole record is now presented to this court for review. No claim is made by the judgment creditor to any instalment payments which were made by the vendee under his contract of purchase and after the entry of the judgment. The contract of purchase was on record at the time the judgment was taken and the vendee was then in possession of the real estate. Conceding for the sake of discussion that the judgment creditor has a lien on the legal title remaining in the vendor after the execution of the contract of purchase, such lien is subject to the equities and rights of the vendee. East St. Louis Lumber Co. v. Schnipper, 310 Ill. 150; Chinn v. Butts, 3 Dana (Ky.) 547. Under the decisions of those which hold that a judgment is a lien on the legal title of the vendor, although the judgment is taken after the execution of the contract of purchase, it is held that if the vendee has made all the payments called for by his contract of purchase before the docketing of the judgment, the buyer at the sheriff’s sale of the vendor’s title takes the naked legal title and such buyer must convey the legal title to the vendee. Lounsbury v. Purdy, 11 Barb. (N. Y.) 490; McMullen v. Wenner, 16 Serg. & R. 18 (Pa.) 16 Am. Dec. 543; Thomas v. Kennedy, 24 Iowa 397; Manly v. Hunt, 1 Ohio 257.

It is to be observed that the vendee has paid all of the instalment payments called for by his contract of purchase. The vendee is now entitled to the legal title to the real estate so that he may convey such legal title to the vendor, or his grantee, by mortgage to secure the unpaid balance of the purchase price, as such right is given to him by the contract of purchase. The judgment creditor who has no greater rights than the vendor as against the vendee, attempts by reason of his judgment to impair this present contract right of the vendee. Judgments of courts of law are subject to the control of a court of equity to protect the equities of all persons in the lands of the judgment creditor. Matter of Howe, 1 Paige (N. Y.) 125, 19 Am. Dec. 395; East St. Louis Lumber Co. v. Schnipper, supra.

We have before us the grantee of the vendor, who holds the naked legal title to the real estate as a dry trustee for the vendee; the judgment creditor, whose lien is general and not specific, and who claims a lien on the legal title of the vendor’s grantee; also Bose, who offers to execute the purchase mortgage, and who is the owner of the entire equitable interest or estate in the land. Smith v. Loewenstein, 50 Ohio St. 346, 34 N. E. 159.

As before stated, the time has arrived for the execution of the deed and the mortgage securing the balance of the purchase price. The judgment creditor has been aware for a long time that when the vendee completed his cash payments as provided in his contract of purchase he would be entitled to a deed which would convey the real estate to him free and clear of all liens not existing at the time the contract was executed. It seems inequitable and an intolerable burden upon the vendee and an impairment of his contract that the judgment creditor may now levy on such title of the vendor’s grantee and sell it under sheriff’s sale, giving to the said grantee and the vendor and their judgment creditors, upon reversal and abrogation of the lower court’s decree, the right of redemption from such sale. Shall the vendee’s contract be held in abeyance until it suits the judgment creditor to enforce his judgment by legal process and a sheriff’s deed is executed! Must the vendee wait until the statute of limitations has outlawed all judgments against the vendor, and even judgments against the vendor’s grantee, before he is to have his deed, because the judgment creditor recovered his judgment after notice of the terms of the contract of purchase and the judgment creditor has done nothing- to enforce his judgment until the day arrives when the vendee is entitled to his deed! The conflicting rights of such judgment creditors, if their liens are held enforceable against the legal title, give them a superior position over the vendee, which is highly prejudicial to the equitable rights of the vendee. In determining the equities in this case we are not to place a duty on the vendee which he must perform and thereby secure a satisfaction of the judgment creditor’s debt. Therefore, it is no answer to say that the vendee may by injunction restrain the judgment creditor if he chooses to sell the land under his judgment, nor that the vendee may file a bill of interpleader. The vendee holds no money or property which he can deposit in court, and he is obligated by his contract to execute the mortgage or suffer a forfeiture of his contract. Northwestern Mut. Life Ins. Co. v. Kidder, 162 Ind. 382, 70 N. E. 489, 66 L. R. A. 89; Chinn v. Butts, 3 Dana (Ky.) 547. It is inequitable to force the vendee to resort to the circuitous route of a bill in the nature of a bill of interpleader to litigate his contract right against the holder of the legal title, of a conveyance to him of the said title. The judgment creditor has no equitable lien on the unpaid part of the purchase price. Chinn v. Butts, supra. The judgment creditor should be vigilant in collecting his debt. A court of equity is not interested in the collection of civil judgments until the legal remedies to collect the judgment debts have been exhausted and there appears some ground of equitable jurisdiction.

The case calls for the application of the maxim, equity regards that as done which ought to be done. The time for the performance of the contract has arrived and as against the holder of the legal title and as against judgment creditors claiming a lien on the legal title bound by notice of the vendee’s rights, the vendee is entitled to a deed conveying the real estate to him clear of any liens which do not secure any debts or liability of the vendee. The present contract right of the vendee to mortgage the real estate would be barren indeed if the legal right were subject to all of the liens of the judgment creditors of the vendor and his grantee, if any. The vendee has the right under his contract to reconvey the real estate and the legal title thereto to the owner thereof by mortgage as security for the balance of his purchase price of $9,000. And in equity this will be considered as done. Ainger v. Webster, 85 Vt. 446, 82 Atl. 666; Rhodes v. Meredith, 260 Ill. 138; Knights v. Knights, 300 Ill. 618; Lewis v. Shearer, 189 Ill. 184.

We find no reversible error in the case and the judgment of the circuit court of DuPage county is hereby affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Niehaus

text:
    William L. Bruner, Appellant, v. Estate of Milton J. Wolford, Deceased, Appellee.
    Gen. No. 8,636.

      Opinion filed October 13, 1933.
    Colefax T. Martin and Arthur R. Hall, for appellant.
    James C. Woodbury and Gunn, Penwell & Lindley, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opin-. ion of the court.

On May 2, 1929, the appellant, William L. Bruner, filed a claim against the estate of M. J. Wolford, deceased, in the probate court of Vermilion county. The claim was for the principal sum of a $2,000 promissory note of which he was the assignee and accrued interest thereon; and other items amounting to a total sum of $2,369.14. The executors of the Wolford estate entered their appearance and waived process of summons and filed their objections to the claim. Thereafter the appellant amended his claim reducing the amount claimed to the sum of $1,771.33. The probate court heard the evidence concerning- the claim; and on March 30, 1931, allowed it against the Wolford estate as a sixth class claim. An appeal was prosecuted from the judgment of the probate court to the circuit court, where a hearing de novo was had. With the approval of the circuit court, the parties entered into a stipulation before the hearing that the narrative transcript of the evidence from the probate court should be taken as the evidence in the case. The following narrative of the evidence taken from appellee’s brief is a substantially correct statement of the facts shown by the transcript of the evidence from the probate court:

On the 29th day of January, 1887, James H. Barkley, a resident of Danville, Illinois, and possessed of a considerable estate, both real and personal, and Cynthia A. Barkley, his wife, made their respective wills, and on March 24, 1915, each of them made codicils to their respective wills. The two wills devised all of their respective estates each to the other, for and during the life of the survivor, and each nominated the other to be executor of the respective wills; and further, the said James H. Barkley nominated Milton J. Wolford to be executor of his will, in case his wife should not survive him. Both wills directed the distribution of the remainder of said estates, if any remained after the death of the survivor, in the same manner. The codicils aforesaid merely made some additional specific bequests and some slight changes in the distribution of the remainders and are substantially in the language, except that in the codicil to her will the said Cynthia A. Barkley provided for the appointment of said Milton J. Wolford as executor of her will in case her husband should not survive her.

Bach codicil provided that the executor should sell all of the real estate and divide the money as directed in the will. And in each codicil appears the following clause: “And I further direct that my executor shall distribute, so far as he can, the notes and mortgages I may leave, without collecting the same, to the various heirs and legatees.” This language is important in view of the contention of appellant that Milton J. Wolford, who finally became executor of both wills, made a partial distribution “in kind” of said estates.

James H. Barkley died first, in April, 1915, and, in accord with his said will, the said Cynthia A. Barkley became the sole beneficiary thereof for and during her life, and became executor of the will of her husband and continued to administer said estate until March 28, 1916, when she was adjudged to be a distracted person and the said Milton J. Wolford was appointed conservator of her estate and continued as such conservator until July 27, 1920, when the said Cynthia A. Barkley died, and he became executor of her estate and continued the administration of both estates until his discharge on April 19, 1924.

The appellant, William L. Bruner, and the said Ida B. Connell, Joe H. Bruner, J. G. Fine and Ellsworth Sager are among the heirs, or are representatives of heirs, of said Barkley estates and shared in the final distribution of said estates by the executor, Milton J. Wolford.

On the 18th day of March, 1924, the said Milton J. Wolford, as executor, filed his final account in the probate court. Examination of that account discloses that he charged himself, as executor, among- other assets of said estates, with “Securities on Hand— $24,596.80,” and that, after deducting credits, he. showed a balance on hand on the 18th day of March, 1924, of “Cash and Securities — $50,069.84.” The probate journal shows presentation of said account on the last mentioned date, approval of said account and an order to distribute said balance immediately', and to file report of distribution.

On April 19, 1924, said executor presented his final report of distribution and the same was approved by the court and ordered to be recorded. ■

After filing his final account said Milton J. Wolford caused to be sent to all of the distributees of the Barkley estate notice that he would file his final report of distribution and ask to be discharged on April 19,1924. Attached to said notice is an affidavit of one Gertrude C. Koch that, on various dates between March 29,1924, and April 8, 1924, she sent by mail to each of the parties named in the said report of distribution a, notice of intention to file final report and ask for the dis^charge of the executor on the said April 19,1924.

It appears from the evidence that stich a notice wá£ mailed to and received by the said William L. Brttner', This notice indicates that part of the final distribution of the Barkley estates was “in kind,” and the evidence shows that William L. Bruner (and the other four claimants) was one of the distributees “in kind,” and that he received from said executor, as his distributive share of the Barkley estates, one of five notes of $2,000 each and a check for $397.63, aggregating $2,397.63, which is shown by the probate court’s order of final distribution to be the amount of the said William L. Bruner’s distributive share of said estates.

The evidence shows the origin of the five notes of $2,000 each, above referred to, to be as follows:

On March 10, 1920,. George Tuttle secured a loan of $10,000 from M. J. Wolford, conservator of Cynthia A. Barkley, distracted, which loan was for five years, ending March 10, 1925, and was secured by mortgage on lands. Three months later, on June 13, 1920, Cynthia A. Barkley died and said Milton J. Wolford became executor of her will, heretofore mentioned.

The said $10,000 loan was made by Wolford, as conservator and not as executor, and was from funds of Cynthia A. Barkley, and upon her death became part of her estate, and, in making said loan, the conservator was but performing his duty in investing the estate in his hands.

In March, 1924, Wolford, having sold all of the Barkley real estate and converted it into cash, as directed in both of the Barldey wills, was prepared to make final distribution of the money on hand and of the securities he held as part of said Barkley estates. So he filed, in the probate court, his final account, as aforesaid, showing in his hands for final distribution, in cash and securities, $50,069.84, and was ordered by the court, as aforesaid, to make immediate distribution of said balance. Said final account shows that of said amount for final distribution, the sum of $24,596.80 was in securities, and said court order directs the distribution of the balance on hand among some 35 named distributees, but does not direct distribution in cash. Such direction would have been contrary to the express direction in the wills hereinbefore referred to.

Among the securities referred to was the $10,000 Tuttle note, which would not become due until March 10, 1925.

As none of the distributees named in the court’s order of final distribution was entitled to so large a sum, it became necessary to split up this loan; so, on March 15, 1924, the said Wolford procured the said Tuttle to make a new mortgage, due March 15, 1929, to secure the same sum of $10,000, but divided it into five notes of $2,000 each, payable to one J. F. Geddes, trustee, who immediately indorsed them “Without recourse.” These five notes he sent to said William L. Bruner and his coappellants in partial settlement of the sum of $2,397.63 due to each of them. Accompanying each of these $2,000 notes was Wolford’s check for $397.63 and a notice of final distribution above quoted.

Appellant retained one of these notes without protest and made no objection to the court’s approval of the report of final distribution, nor to the discharge of the executor on April 19, 1924. Appellants had ample time, 'after receipt of said notes, to make any investigation they desired as to the value of the property securing the mortgage, but the record does not disclose any such effort by any of them.

After the making of the notes and mortgage referred to, Tuttle paid the interest thereon for two and a half years, and then defaulted on interest coupon notes due on March 15, 1927. The mortgage provided for fore-" closure in case any of the interest notes were not paid when due, but, notwithstanding such privilege, the appellants took no steps to collect their $2,000 notes until the 1929 October term of the circuit court of Vermilion county, when they filed their bill to foreclose said mortgage and made appellees, as executors of the will of Wolford, parties defendant, claiming the estate was liable. The property upon foreclosure sale sold for $4,000.

Appellant, on May 2, 1929, filed his claim against Wolford estate on a note for $2,000; but the record shows no note upon which to base his original claim. The amended claim filed April 5, 1931, is based on an alleged unlawful loan by Wolford and written guaranty of said note mentioned in original claim, which was received by him in lieu of money due him as a share of the Barkley estate.

In his brief, the appellant assigns the errors following; and in connection therewith states his reasons why the judgment of the circuit court disallowing the claim should be reversed:

The circuit court erred in not finding appellant’s evidence sufficient to sustain a judgment in appellant’s favor. Manifest errors on the part of that court clearly appear from the following points:

Milton J. Wolford as executor of the estates of James H. Barkley and Cynthia A. Barkley, both deceased, was guilty of a devastavit and became liable to appellant for the loss suffered by appellant by reason thereof:

The executor had no legal right whatsoever to loan any funds belonging to said estates.

Neither the will of James H. Barkley nor the will of Cynthia A. Barkley gave the executor any power to loan funds belonging to either estate.

The executor loaned the trust funds in his hands at his peril and he is liable to make good appellant’s loss.

The executor had no legal right to keep said estates open for nearly four years after the death of Cynthia A. Barkley.

The executor had no legal right to make a new loan and take a new mortgage on real estate for the purpose of extending or taking up a loan previously made without authority, by himself as conservator, on the same real estate, said loan being then about two years in arrears on interest payments.

The executor in order to get appellant to take a note in lieu of cash guaranteed the note to be perfectly good and became personally liable for appellant’s loss on the note.

It is sufficient to say, concerning the first and second reason above urged, that the evidence in the record does not disclose that the deceased Wolford loaned any of the funds of the James H. Barkley and Cynthia A. Barkley estate, of which he was the executor; but the evidence shows that the funds referred to as having been loaned by Wolford were loans made while he was acting as conservator for Cynthia A. Barkley, in the regular course of the administration of his conservatorship ; and that the loan in question was .secured by a mortgage on real estate to secure the five promissory notes of $2,000 each, which represented the loan, and which afterwards became a part of the assets of the Cynthia A. Barkley estate; and that these notes were distributed among the heirs and devisees of her estate; and that the appellant was one of the distributees ; and that he accepted the note which is now the basis of his claim, together with the money constituting his share in the estate, in full satisfaction, and settlement and discharge of his distributees’ share therein; and held the note as assignee for several years collecting the accruing- interest thereon. There is no evidence in the record from which it can be reasonably inferred that the real estate covered by the $10,000 mortgage taken by Wolford as security did not fully secure the notes referred to. And it is reasonable to assume that if the appellant had had any question about the sufficiency of the security, he would not have accepted the note nor retained it for the purpose of having the benefit of collecting the interest thereon. There is no evidence in the record that the deceased Wolford was guilty of a devastavit as executor of the James and Cynthia Barkley estates, or either of them; nor does the record disclose any evidence of any guaranty made by the deceased Wolford for the payment of any of the notes referred to, or the note held by the appellant; nor is there any evidence upon which a personal liability of the deceased Wolford could be based; or of any liability of the Wolford estate for the payment of appellant’s claim. The finding of the court disallowing the claim was in accordance with the evidence and the law; and the judgment is therefore affirmed.

Affirmed.


text:
    Dorothea Hartmann, Appellee, v. The Board of Education of Westville Township High School, District No. 220 in Vermilion County, Appellant.
    Gen. No. 8,761.

      Opinion filed October 13, 1933.
    Ralph Rouse, for appellant.
    Mann & Stifler, and Lewman & Carter, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

The appellee in this case, Dorothea Hartmann, a public school teacher, sued the board of education of Westville Township High School District No. 220, in' Vermilion county, for alleged unpaid salary, amounting to the sum of $500. She claims the right to recover under the terms of a contract with the appellant board. The case was determined by the court on the pleadings. The declaration filed which contains the averments of fact upon which appellee bases her rights, is as follows :

“The declaration avers: That the appellant on May 12,1931, entered into a contract with the appellee, a teacher, to teach in the Westville Township High School; and that the contract provided:

“For general conduct of the school and preservation * of the school property by the teacher.

“For employment for term of nine calendar months commencing on August 28, 1931, at the rate of Two Hundred Dollars ($200.00) per month.

“For care and maintenance of the building by the Board and payment of the monthly contract price by the Board.

1 ‘ ‘ That in case said Teacher shall be dismissed from said School by said Board or their successors in office, for incompetency, cruelty, negligence, immorality, or a violation of any of the stipulations of this contract, or in case her certificate should be revoked by the County Superintendent of Schools, said Teacher shall not be entitled to compensation after such dismissal or revocation. ’

“The acceptance of employment by appellee teacher and continuation of employment until March 15, 1932; and

“The discharge of the appellee by appellant March 15, 1932, ‘without any reasonable or just cause,’ and appellee’s averment of willingness to continue teaching at the time of such discharge.

“Teacher’s Contract

“This Agreement, entered into by and between the Board of Education of Westville Township High School, District No. 220 in the County of Vermilion and State of Illinois, party of the first part, hereinafter called the Board, and Dorothea Hartmann, a legally qualified teacher, party of the second part, hereinafter called the Teacher,

WITNESSETH :

“That for the consideration hereinafter set forth said Teacher agrees to teach, govern and conduct the common school of said District to the best of her ability; to keep a register of the daily attendance and studies of each pupil belonging to said school and such «other records as said board may require; to make all reports required by law and to see that the school house, grounds, furniture, apparatus and such other district property as may come under the immediate care and control of said Teacher is not unnecessarily damaged or destroyed.

“That said Teacher agrees to perform the duties above specified for a term of Nine calendar months, etc., commencing on the 28th day of August, A. D. 1931 for the sum of $200.00 Dollars per month to be paid at the end of each month upon the filing with the clerk of proper schedule.

“That said Board hereby agrees to keep the schoolhouse in repair, to provide the necessary fuel and school register, and for the services of said Teacher, as prescribed above, well and duly performed, to pay said Teacher the sum of money above specified.

“That in case said Teacher shall be dismissed from said School by said Board or their successors in office, for incompetency, cruelty, negligence, immorality, or a violation of any of the stipulations of this contract, or in case her certificate should be revoked by the County Superintendent of Schools, said Teacher shall not be entitled to compensation, after such dismissal or revocation. ’ ’

The appellant filed a general and special demurrer to the declaration, which is as follows:

“And the defendant, by Bouse & Bearick, its attorneys, comes and defends, etc., when etc., and says that the said declaration and the matters therein contained in manner and form as the same are above set forth are not sufficient in law for the plaintiff to maintain her aforesaid action, and that it, the defendant, is not bound by law to answer the same; and this it is ready to verify.

“And the defendant shows to the court here the following causes of demurrer to the said declaration, viz.: That under the laws of Illinois, the defendant is given the power, among other things, to dismiss and remove any teacher whenever, in its opinion, said teacher is not qualified to teách, or whenever, in its opinion,1' the interests of the schools may require it; that the plaintiff’s contract with the defendant was subject to this provision of the statute; that the power of the defendant to dismiss and remove the plaintiff because -of her lack of qualification to teach or because the interests of the schools may require it is a discretionary power vested in the defendant; and that this court has no jurisdiction to hear this cause in the absence of allegations by the plaintiff that the defendant abused its said discretion, or acted in bad faith, or was guilty of fraud, corruption, or oppression in its dismissal or removal of the plaintiff. And also that the said declaration is in other respects uncertain, informal and insufficient, etc.

“Wherefore, for want of a sufficient declaration in this behalf the defendant prays judgment, and that the plaintiff may be barred from maintaining her aforesaid action, etc.”

The court overruled the demurrer; and the appellant elected to stand by its demurrer; whereupon the court proceeded to assess appellee’s damages; and after hearing the evidence the court assessed the amount at $500, and rendered judgment therefor against the appellant. This appeal is prosecuted to reverse the judgment.

The question presented for review is based upon the action of the court in overruling appellant’s demurrer, which challenges appellee’s right to recover the amount of salary claimed on the ground that the averments of her declaration do not show that she has a cause of action. It is averred in the declaration that the appellee was a duly qualified teacher under the State laws; and has the legal right to engage in teaching in the public schools for compensation; that on May 12, 1931, a written contract was entered into by her with the appellant board, under the terms of which she was to teach in the Westville .Township High School for a period of nine calendar months for the sum of $200 per month, conditioned however, upon her performing her duties as teacher as prescribed in the contract. The averments of the declaration are also to the effect that the payment of appellee’s compensation was conditional upon her not being dismissed from the service as teacher for incompetency, cruelty, negligence, immorality, or a violation of any of the stipulations of the contract; nor was the compensation payable in case her certificate were revoked by the county superintendent of schools. It is further averred in the declaration that the appellee accepted the employment as teacher under the contract; and continued in such employment until the 15th day of March, 1932, when the appellant board without “any reasonable or just cause” discharged her as a teacher. The charge made in the declaration, as stated above, namely, that the board discharged her without “any reasonable or just cause,” amounted in legal effect to a charge that the appellant board in discharging appellee acted arbitrarily wrongfully in discharging her.

It is well settled law that a board of education cannot arbitrarily discharge a teacher before the expiration of the time for which he or she was employed; that there must be just and reasonable cause for so doing. School Directors v. Reddick, 77 Ill. 628; Neville v. School Directors, 36 Ill. 71; Ewing v. School Directors, 2 Ill. App. 458; School Directors v. Ewington, 26 Ill. App. 379; Doyle v. School Directors, 36 Ill. App. 653; Leddy v. Board of Education, 160 Ill. App. 187; Darter v. Board of Education, 161 Ill. App. 284; Bowden v. Board of Education, 264 Ill. App. 1.

If the appellant board had any just or reasonable cause for discharge of the appellee, it had a right to, and should have, pleaded such cause in defense of appellee’s claim. The board elected not to do so, and stood by its demurrer which admitted the charge made. In this state of the record we are of opinion that the court properly proceeded to a hearing to assess appellee’s damages, and to render judgment therefor; and the judgment is therefore affirmed.

Affirmed.


text:
    The First Central Trust Company, Successor to the First-City Trust and Savings Bank, Appellant, v. H. I. Gelvin, Inc., Appellee.
    Gen. No. 8,770.
    Opinion filed October 13, 1933.
    A. E. Campbell, for appellant.
    F. T. Carson, for appellee; J. M. Mitchem, of counsel.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This suit was brought by the appellant, the First Central Trust Company, of Akron, Ohio, in the circuit court of Champaign county, against the appellee, H. I. Gelvin, Inc., of Columbus, Ohio, which is also a foreign corporation, to recover rent claimed to be due by the appellee under the terms of a lease made in Akron, Ohio, as rent for buildings in Akron, Ohio. The summons in the case was served on H. I. Gelvin, who is a resident of Champaign county, as president of the corporation sued. The corporation thereafter appeared in court and filed a plea to the jurisdiction of the court to abate .the suit. The plea filed is as follows:

“H. I. Gelvin, Inc., a corporation, by F. T. Carson, its attorney and limiting its appearance herein to the sole purpose of this plea comes and defends, etc. and says that at the time of the commencement of this suit, and prior thereto, and from thence hitherto, it was and is a corporation duly organized and existing under and by virtue of the laws of the State of Ohio, by virtue of articles of incorporation, dated the 4th day of September, A. D. 1931; that in and by its said articles of incorporation it is authorized and empowered to do business in the city of Akron, State of Ohio, with its principal office in the city of Columbus, Ohio; that since its organization it has operated a business in the State of Ohio and not elsewhere, and that its principal office-has been and still is in the said City of Columbus, Ohio; that it has never done or transacted business authorized by its charter in the County of Champaign and State of Illinois; that at the time of the alleged service and process of summons in this cause upon H. I. Gelvin, as President of the said company, it was not a resident, nor was it doing business in the County of Champaign, State of Illinois, nor was it found therein. And this defendant further avers that the plaintiff herein has attempted to confer jurisdiction in this court to try said cause against this defendant, by causing service of summons to be made upon one, H. I. Gelvin, a resident of the County of Champaign and State of Illinois, as President of this defendant, and this defendant says that the said H. I. Gelvin is the President of this defendant, but that at the time of said alleged service of summons he was not in said Champaign County, for the purpose of transacting the business of this defendant, nor was he then transacting the business of this defendant in said County; that the said H. I. G-elvin at the time of said service upon him resided in Champaign County, State of Illinois, and was there for the purpose of transacting his own personal business, and not for the purpose of doing or transacting the business of this defendant, and this it is ready to verify; Wherefore it prays judgment if this court will take cognizance of the action aforesaid against this defendant, H. I. Grelvin, Inc., a corporation.”

A demurrer was filed and sustained to the plea; but by leave of court, it was thereupon amended by adding the averments that the corporation sued is not found in Champaign county; and that it had never transacted business in Champaign county; nor in the State of Illinois. The appellant filed a replication to the amended plea alleging that the corporation at the time of the suit was, and that it had been, doing business in the county of Champaign and State of Illinois, and that it had been found therein. The issue was joined on the replication and the case proceeded to trial by the court (a jury trial having been waived by the parties).

After hearing the evidence, the court found the issues in favor of the appellee; and ordered, that the writ be quashed and that the suit abate. This appeal is from the judgment rendered abating the suit.

There is no dispute about the law governing the rights of a foreign corporation to do business in this State. In the case of Edwards v. Schillinger, 245 Ill. 231, 239, the Supreme Court said:

“It is a just and reasonable theory that a business corporation is constructively present, outside of the State of its oiigin, wherever it has property and carries on its operations by means of agents. . . . That service of process could be had upon agents of foreign corporations within the State in the same manner as on agents of local corporations.”

The same question was passed on in the same way in American Hide & Leather Co. v. Southern Ry. Co., 310 Ill. 524, 529. In the latter case the court said: “A business corporation is constructively present in any State where it has property and carries on its operations by means of agents, although the domicile of the corporation is in another State. If a foreign corporation does business in the State through agents, it may be sued there by obtaining service on the agent.”

The evidence in this case clearly shows that the business which the appellee corporation was organized for and engaged in, was to carry on the manufacturing and selling, both at wholesale and retail, and dealing in, popcorn and popcorn confections generally. Doing business does not mean the performance of matters pertaining to the organization or the management of the corporation, but the transactions of the ordinary business in which a corporation is engaged by the exercise of its corporate powers. Booz v. Texas & Pacific Ry. Co., 250 Ill. 376; Empire Fuel Co. v. Lyons, 257 Fed. 890; Maguire v. Peoria & Pekin Union Ry. Co., 264 Ill. App. 333.

So it has been held that maintenance of an.office in Illinois where the secretary and treasurer of a Washington corporation kept books and accounts of the corporation and its stockholders, issued shares of stock, and held director’s meetings is not “doing business” in Illinois. Bradbury v. Waukegan & Washington Mining & Smelting Co., 113 Ill. App. 600.

Also, that having an office in this State for the convenience of the corporation in managing its internal affairs, all of its property, with its chief offices and places of business being carried on in the State of its creation does not constitute doing business in this State. People v. Mascot Copper Co., 202 Ill. App. 151.

There is no evidence in the record from which an inference could be reasonably drawn that the appellee corporation ever at any time manufactured or sold any popcorn or any popcorn confections, at wholesale or retail, or otherwise, in this State, or that it ever at any time had any agents in this State for the purpose of transacting the business in which it was engaged; or that it at any time transacted the business in which it is engaged, in Champaign county, or in the State of Illinois.

For the reasons stated we conclude that the finding and judgment of the court is in accordance with the law and the evidence; and the judgment is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Davis

text:
    James Loftus et al., Plaintiffs in Error, v. W. C. Tucker, Defendant in Error.
    Gen. No. 8,725.

      Opinion filed October 13, 1933.
    James W. Gordon and Walker & O’Harra, for plaintiffs in error.
    Downing & Helfrich, for defendant in error.
   Mr. Justice Davis

delivered the opinion of the court.

This is a writ of error sued out to review a decree entered in the circuit court of McDonough county dismissing a bill for want of equity filed by plaintiffs in error to obtain contribution from defendant in error,

The facts are all admitted by stipulation, and as only questions of law arising from the facts are involved, it is unnecessary to set out the pleadings as they are based upon the facts so stipulated.

In the Village of Baritan, Henderson county, Illinois, during and prior to December, 1920, a private bank, known as the Baritan Union Bank, operated as a copartnership. The legislature, by an act approved June 23,1919, and ratified by a referendum in November, 1920, prohibited natural persons, firms and partnerships from conducting the business of banking within the State from and after January 1, 1921. (L. 1919, p. 235. Cahill’s St. ch. 16a, ¶ 1 et seq.) It therefore became necessary for this bank to wind up its affairs and cease the business of banking.- While it was in-operation it had loaned to Mrs. Frances C. Bailey-$29,098.54, and had taken her notes therefor, which were secured by a second mortgage on 240 acres of land and also by a chattel mortgage. There was a first mortgage on the land for $17,000.

The Raritan State Bank was organized and received its charter to do business December 27, 1920, at which time the plaintiffs in error together with the defendant in error constituted its board of directors; the defendant in error remained a director until January 6,1925, when he resigned, and since that time has not been a director or other officer of said bank. Immediately upon its organization it took over a large portion of the assets of the Raritan Union Bank, including the Bailey notes above mentioned, and carried them as assets of the bank. Payments on the Bailey notes were made prior to April 18, 1922, to the Raritan State Bank, and on that date there was a balance due thereon of $25,011.37, and an extension agreement was entered into between the bank and Mrs. Bailey whereby the time of payment thereof was extended to April 17, 1924.

On April 20, 1923, a new first mortgage on the land was executed by Mrs. Bailey to secure an indebtedness to the Chicago Joint Stock Land Bank of $23,000 and also a new second mortgage was executed by her to the bank to secure an indebtedness of $19,637.98, being the balance due the bank on the original indebtedness taken over from the Raritan Union Bank, and also including the amount of a note of $1,536.91, executed by Mrs. Bailey and owned by the First National Bank of Stronghurst, representing an indebtedness due from her to that bank.

On October 9, 1925, Mrs. Bailey conveyed by quitclaim deed all of her interest in said land to the Raritan State Bank, in full payment and satisfaction of her debt to the bank, and her notes were marked “paid” and surrendered to her, and her indebtedness was extinguished. The bank thereafter carried the loan as an asset, as “other real estate.” The hank leased the land, collected the rent, paid the taxes thereon and also the necessary instalments of principal and interest on the first mortgage until October 4, 1930, when, as the five-year period during which a state bank was permitted by law to carry such real estate as an asset was about to expire, the bank was therefore compelled to dispose of the land.

All of the plaintiffs in error jointly paid the bank $21,096.86 and the bank, at their request, executed a deed conveying the land to three of them, W. D. Bricker, D. M. Cortelyou and H. D. Tucker, as joint tenants; at the same time the plaintiffs in error executed a contract or trust agreement which recited in substance, among other things, that, in pursuance of a resolution of the board of directors of the Raritan State Bank of Raritan, the said bank conveyed to W. D. Bricker, D. M. Cortelyou and H. D. Tucker, as joint tenants, certain described lands, being the lands formerly conveyed to the bank by Frances C. Bailey; that the conveyance was made for the purpose of talcing said real estate out of the assets of the bank, and the complainants, having advanced the sum of $21,096.86, are the equitable owners of the real estate; that by taking over the land they and each of them recognized a liability so to do by reason of having signed bonds to the auditor of the State of Illinois, but that it was not intended to release anyone else who, as a director of said bank, or otherwise, may at any time have signed such bonds and reserving the right of contribution as to any such person, and that, therefore, it was agreed that said W. D. Bricker, D. M. Cortelyou and H. D. Tucker should hold said lands for the exclusive benefit of the persons who contributed said sum of $21,096.86 to said bank, and to rent and handle the same, and to make in March of each year a report, in writing, showing in detail all of their transactions, and that by signing such agreement the joint tenants accepted the trusts imposed on and vested in them, and that, in case of contribution from any other person, all of the parties to the agreement are to share equally in such contribution, and that upon a sale of the lands the nét sum received to be divided between the parties in the proportion in which they contributed to said funds so raised by them to pay said bank for said real estate.

The defendant in error, W. C. Tucker, did not sign this contract, and in so far as the evidence discloses had no knowledge or participation in the transaction, and he was not at that time a director or other officer of the bank.

The capital stock of the Raritan State Bank, when organized, was and always had been $35,000 and never had any surplus. The Act of 1919, before mentioned, by section 10 thereof, Cahill’s St. ch. 16a, t[ 10, provided that the total liabilities of the bank, organized under said Act, of any person, corporation or firm, for money borrowed shall at no time exceed 15 per cent of the amount of the capital stock of such bank actually paid in and unimpaired and 15 per cent of its unimpaired surplus fund, and that every director who shall violate, participate in, assent thereto, or permit any of the officers, agents, or servants of the bank to violate the provisions thereof, shall be liable in his personal and individual capacity for all damages which the association, its shareholders, or any other persons shall have sustained in consequence of such violation, provided however, that if such bank shall cause to be deposited with the auditor of public accounts a sufficient bond, the auditor may issue to such bank a permit granting permission to the bank, within a period of one year, to carry, without liability against the officers and directors of such bank on account of any loans being excessive, loans otherwise excessive under the provisions of the Act to the aggregate amount of such bond. As the Raritan State Bank was desirous of carrying s-uch excessive loan the plaintiffs in error and the defendant in error, they being the then directors of the bank, executed bonds for three successive years, each in the principal sum of $100,000, deposited them with the auditor and received permits for such years, authorizing it to carry excessive loans to the amount of the bond. The first permit was granted to the bank in 1922, the second permit was granted September 25, 1923, and the third November 14, 1924. The bank carried other excessive loans in addition to the Bailey loan.

The claim of the plaintiffs in error for contribution is based upon the fact that the defendant in error was a co-obligor on these bonds. It is the theory of the plaintiffs in error that, by purchasing the Bailey notes from the Raritan Union Bank in 1920, the Bailey debt became a loan from the Raritan State Bank, and that, notwithstanding the fact that said indebtedness of Mrs. Bailey was fully paid and satisfied in 1925 by the conveyance of the lands to the Raritan State Bank and that the bank carried .it as an asset as “other real property” for five years, during which time the bank collected the rents from the property, and there is no evidence that it made any effort to sell or dispose of the same, until compelled to do so by limitation of the law for holding land as real estate assets for more than five years, the obligation for the original excessive loan continued to the obligors of the bond, and it became their duty to pay the amount that might have become due on the Bailey notes, if they had not been paid, on the ground that the value of the land on October 4, 1930, was but little, if any, more than the amount due under the first mortgage.

The obligation of the bond, as defined by the statute and the bond, was for all damages which the bank, its shareholders, or any other person shall have sustained, in consequence of excessive loans carried under the permit of the auditor. It is clear, therefore, that before plaintiffs in error can have contribution from the defendant in error there must be proof that the bank, its shareholders or some other person suffered loss by reason of such excessive loan, or inevitably would have done so, had the plaintiffs in error not made the payment to the bank under the circumstances shown, and also proof of what the amount of such loss would have been.

There is no proof whatever of the amount the Raritan State Bank paid to the Raritan Union Bank for the Bailey notes, nor for any of the other assets thereof purchased of it by the Raritan State Bank; there is no proof whatever of what the value of the mortgaged land was at the time of the purchase of the Bailey notes in 1920; there is no proof of what the value of the land was on October 9, 1925, when Mrs. Bailey conveyed it to the Raritan State Bank in payment of her notes; there is no proof of what the value of the land was on October 4, 1930, when plaintiffs in error paid the supposed amount assumed to be due on account of the Bailey loan, and had the bank execute the deed to the three grantees before mentioned. In fact the record is barren of any proofs by which the chancellor could find that any loss had resulted to anybody on account of said Bailey loan and much less the amount thereof.

Plaintiffs in error base their rights to contribution upon the presumption only that unless they had paid the amount they did, the bank, its shareholders, or some other person would have suffered damages or loss to that extent. The payment to the bank by the plaintiffs in error was made before the five-year limitation had expired, and while it is true a joint obligor may pay before maturity in a case where liability i§ sure to accrue, and which payment will not be considered voluntary so as to defeat contribution (Golsen v. Brand, 75 Ill. 148), yet, in the case at bar, there are no proofs that there was or would be any liability. The loss, if any, was unliquidated and would have to be determined from the evidence. If, in fact, no loss did accrue to anyone by carrying the Bailey loan, then there could have been no liability to the obligors on the bond; if, however, any such loss did accrue for which the obligors could be held legally responsible, then before contribution can be had there must be proof of such loss and the amount thereof. There were no such proofs.

In our opinion the plaintiffs in error have failed to establish the right of contribution against the defendant in error. The'decree of the circuit court is affirmed.

Affirmed.