text:
    Charles H. Albers, Appellee, v. Dr. Pierre Chemical Company et al., Appellees. Appeal of Partola Products Company, Appellant.
    Gen. No. 40,658.

      Heard in the second division of this court for the first district.
    Opinion filed April 2, 1940.
    Frederick A. Brown and David A. Canel, both of Chicago, for appellant; Daniel F. Kemp, of Chicago, of counsel.
    Bradburn & Dammann, of Chicago, for appellee Thomas J. Williains.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This is an appeal by the defendant, Partola Products Company, from an order entered January 6, 1939, directing that a writ of injunction issue restraining said company from proceeding with the prosecution of an action brought by it in the municipal court of Evanston to recover from Thomas J. Williams on a note for $5,000 executed by him to the order of Partola Products Company. The order also directed that the injunction issue without bond.

Plaintiff in the instant proceeding, Charles H. Al-bers, receiver of the Phillip State Bank & Trust Company, having procured a judgment against John H. Taft, filed his complaint herein in the nature of a creditor’s bill against the said John H. Taft, John Ailes Taft and Dr. Pierre Chemical Company. Thereafter, on November 21,1938, plaintiff filed a second amended complaint making Thomas J. Williams an additional party defendant and alleging that said Williams was indebted to the principal defendant, John H. Taft, upon a note and prayed discovery of any amount due from Williams to John H. Taft upon said note.

In response to a petition filed by Thomas J. Williams an order was entered December 30, 1938, making the Partola Products Company ap additional party defendant in this cause. It was also ordered that Williams’ petition stand as his answer to the second amended complaint. Williams filed a further petition which alleged inter alia that “on July 10, 1931, your petitioner did execute and deliver to said John H. Taft his note for the sum of $5,000.00 and that from time to time thereafter he has executed renewals of said note ; that all of your petitioner’s dealings have been had with the said John H. Taft, individually, and that all payments of interest on said note have been made directly to him”; that “on various renewals of said note same have been made payable to John H. Taft & Company and the Partola Products Company; that said payees were named in said renewal notes at the request of John H. Taft”; that “John H. Taft is an officer and stockholder of said Partola Products Company and is the active head thereof; that said Partola Products Company never paid any consideration for said note and has no interest therein; but is holding* said note on behalf of and for the use of John H. Taft”; that “the said J ohn H. Taft is the real holder and owner of said note”; that “John H. Taft & Company and John H. Taft were one and the same person”; that “on December 20, 1938, there, was filed in the Municipal Court of Evanston, in Cook County, Illinois, a Statement of Claim against your petitioner by said Partola Products Company, a corporation; that said last mentioned suit was instituted on said note on December 20, 1938, which date was subsequent to the date on which your petitioner was joined as a party defendant to this proceeding; that the basis of said Statement of Claim sought to be enforced in the Municipal Court of Evans-ton is the same claim which the plaintiff herein seeks to reach in this proceeding; that the said Partola Products Company, a corporation, claims to be the owner of said note and the plaintiff herein claims that the judgment debtor, J ohn H. Taft, is the owner of said note; that it is necessary for a complete determination of the controversy as to the ownership of said note and of the obligation of this petitioner thereon, if any there be, that the said Partola Products Company, a corporation, be joined as a party defendant herein.” The petition concluded with the prayer that the Partola Products Company, its agents and servants be enjoined from prosecuting the suit on said note, which it had instituted in the municipal court of Evanston, during the pendency of the instant action.

Pursuant to this petition the in junctional order appealed from was entered as heretofore stated on January 6,1939.

On February 1,1939, the Partola Products Company filed an answer to Williams ’ petition in which it set forth its claim against Williams on the aforesaid note, concluding with the prayer that “this defendant, Par-tola Products Company, respectfully asks this Court that a judgment be entered herein in its favor against Thomas J. Williams for $5,000.00, together with interest thereon from November 10,1938, at the rate of 6% per annum and costs.” On the same day that it filed said answer the defendant Partola Products Company moved “that the Injunction heretofore issued in this cause on the Petition of Thomas J. Williams and against this defendant be set aside and held for naught, and that the said Motion and the Petition filed herein by said Thomas J. Williams and the Answer thereto of Partola Products Company be referred to a Master in Chancery of this Court for the purpose of taking evidence on said Motion and the issues made up in said Petition and said Answer, and that said Master report the same to this Court, together with his conclusions of law and fact thereon.” In response to this motion the court entered the following order:

“This matter coming on to be heard upon the Motion of Partola Products Company, a corporation, by its attorney, Frederick A. Brown, to set aside the Injunction issued herein on behalf of Thomas J. Williams against the Partola Products Company, and upon the Petition filed by Thomas J. Williams and the Answer thereto filed by Partola Products Company, be referred to a Master in Chancery of this Court to take evidence and report his conclusions of law and fact on said Motion and said issues made in said Petition and Answer ;
“It is therefore ordered that said Motion and the issues made up in said Petition and said Answer be and the same are hereby referred to Gerald E. Gor-man, a Master in Chancery of this Court, to take evidence thereon and report his conclusions of law and fact.
“It is further ordered that the entire cause be placed at issue between the plaintiff herein and all defendants within thirty days of date; that no hearings be held on this reference until said entire cause is at issue.” '

In view of the status of this case as disclosed by the record, we find it unnecessary to either consider or, determine the questions presented as to the propriety of the order granting the injunction or of the entry of such order without requiring a bond.

The order granting the temporary injunction having-been entered upon notice and after a hearing, the statute (par. 202, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.078]) authorized defendant Partola Products Company to prosecute an appeal therefrom without first moving- to dissolve said injunction. But it will be noted that the Partola Products Company did not proceed to avail itself of its right to appeal from the injunctional order. Instead it moved to vacate said order and further moved that its motion to vacate be referred to a master in chancery “for the purpose of taking evidence on said motion” and that he report the same to this court, together with his conclusions of law and fact thereon.” It will be further noted that the court ordered the defendant Partola Products Company’s motion to vacate referred to a master “to take evidence thereon and report his conclusions of law and fact.” Thus by reason of the voluntary affirmative action of the Bartola Broducts Company, the injunctional order which was originally clearly appealable is no longer so. Because of the court’s order entered pursuant to the motion of the Bartola Broducts Company to vacate the injunctional order and to refer such motion to vacate to a master, the injunctional order is now pending before the master with its finality as a temporary restraining order undetermined. In the present state of the record the order granting the temporary injunction is not appeal-able and the appeal is therefore dismissed.

Appeal dismissed.

Friehd and Soahlah, JJ., concur.


source: Caselaw Access Project

author: Mr.'Presiding Justice John J. Sullivan

license: Public Domain

text:
    Clara Skolnik, Appellant, v. Beatrice Petella, Appellee.
    Gen. No. 40,664.

      Heard in the second division of this court for the first district at the April term, 1939.
    Opinion filed April 2, 1940.
    Maurice H. Kamm, of Chicago, for appellant.
    Joseph M. Fiore, of Chicago, for appellee.
   Mr.'Presiding Justice John J. Sullivan

delivered the opinion of the court.

This appeal by plaintiff, Clara Skolnik, seeks to reverse an order which sustained defendant’s motion to strike her amended statement of claim and to dismiss her suit.

This action was brought against defendant, Beatrice Petella, to recover a balance claimed to be due upon a $500 mortgage bond owned by plaintiff which had theretofore gone to foreclosure and sale. In the foreclosure proceeding a personal judgment for the deficiency found to be due after sale was entered under the statute against the mortgagors, who were codefend-ants therein of Beatrice Petella, the defendant in the case at bar. A personal judgment for the deficiency could also have been procured in the foreclosure proceeding against Beatrice Petella, as a grantee of the mortgaged premises, who had assumed and agreed to pay the mortgage indebtedness and who had entered her general appearance in said proceeding, but such relief was not requested therein.

Plaintiff contends in her brief that “since the complaint in the foreclosure proceeding did not allege facts which would sustain a finding of personal liability against Beatrice Petella, no issue was made as to her personal liability and consequently, those proceedings constitute no bar to the present action seeking to enforce liability against her. ’ ’

Defendant’s theory is that since she was a party to the foreclosure proceeding and had entered her general appearance therein, the court had jurisdiction to enter a deficiency decree against her and having entered a deficiency decree against the mortgagors and having failed to enter such a decree against her, plaintiff is now barred under the doctrine of res judicata from maintaining this action.

It has been repeatedly held that if a purchaser of mortgaged premises has assumed the mortgage and agreed to pay it, a decree for the deficiency shown to be due in the foreclosure proceeding may be rendered against him, provided he was joined as a defendant in that action and was personally served with process. (Vol. 2, Reeve Illinois Mortgages, sec. 680, p. 765; Ingram v. Ingram, 172 Ill. 287.) But a decree for such deficiency can be rendered against the purchaser of mortgaged premises who has assumed and agreed to pay the mortgage indebtedness only where there are proper averments in the complaint to foreclose and a special prayer for this relief. (Vol. 3, Jones on Mortgages, sec. 2206, p. 815; Adam v. Rochey, 139 Ill. App. 507.)

Plaintiff concedes in her brief “that had the pleadings in the foreclosure case alleged the fact that Beatrice Petella had, by the deed conveying the premises to her, assumed and agreed to pay the debt secured by the trust deed sought to be foreclosed, so that her personal liability was in issue, and then the foreclosure decree found the Roloffs, the mortgagors, personally liable, then, as to personal liability on the part of Beatrice Petella (the owner of the equity), the decree would have barred the instant suit.”

Prior to the act of 1865 (ch. 95, sec. 17, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 83.17]), which authorizes the court in suits in equity directing a decree in foreclosure, to render a decree for any balance that may be found due plaintiff after the sale of the mortgaged premises and award execution therefor, it was necessary to institute a separate action at law for the recovery of such balance or deficiency. The statute confers upon the court the right to grant and upon a plaintiff the right to demand from defendants in a foreclosure -proceeding, all the relief that could be secured in a court of law. The act of 1865 was clearly intended to prevent a multiplicity of suits by facilitating the determination in the foreclosure proceeding of all possible pertinent questions between the same parties. It is true that the statute does not make it obligatory upon a plaintiff in a proceeding- to foreclose to exercise his right thereunder to demand a personal judgment against the person or persons liable for the deficiency after sale. It is also true that a creditor by note and mortgage may sue at law on the note and in equity to enforce the mortgage lien and that these remedies may be pursued either concurrently or successively, although of course he can have but one satisfaction.

However, it is insisted that, notwithstanding plaintiff’s complaint to foreclose did not allege any facts showing personal liability as to Beatrice Petella or seek a personal judgment against her for the deficiency and even though ordinarily it is not obligatory upon a plaintiff in a foreclosure suit to demand or secure a deficiency judgment against the defendant or defendants personally liable and as a general rule the owner of a note and a mortgage securing same may sue at law on the note and in equity to enforce the mortgage lien, since defendant was a necessary party to the foreclosure proceeding and personally appeared before the court therein and plaintiff did exercise her right under the statute to procure a deficiency decree against the mortgagors and could have procured a similar decree against the grantee, Beatrice Petella, the fact that she could have procured such a decree in the foreclosure proceeding bars plaintiff from maintaining this action.

In so far as we have been able to ascertain the precise question presented has not heretofore been considered or determined by any court of review in this State.

In vol. 2, Reeve Illinois Law of Mortgages, sec. 679, pp. 763, 764, the author makes this statement:

“If several defendants are jointly and severally liable for the payment of a mortgage debt, the mortgagee, on obtaining a decree of foreclosure against them, may have a decree for the deficiency against all; but if he takes a deficiency judgment against one defendant only, no disposition being' made of the case as to the others, the cause of action merges in the decree and the other defendants will be released. ’ ’ In vol. 3, Jones on Mortgages, sec. 2209, p. 724, is found the following statement to substantially the same effect: “Where a deficiency decree is taken against one only of several persons jointly liable, the others are released.”

The authority relied upon for the rule enunciated in the foregoing statements of the authors of both of these works is Travelers’ Ins. Co. v. Mayo, 170 Ill. 498. Defendant argues that this case is controlling as to the question under consideration here, but we do not think that it is. The Mayo case was a suit in assumpsit, seeking recovery on a joint and several promissory note executed by R. Gr. Mayo and his wife in the State of Florida, June 15, 1888, for $5,000. The action was dismissed as to R. Gr. Mayo. The remaining defendant, Clara P. Mayo, filed a plea “setting up the execution of the note and mortgage on the real estate in the State of Florida, that the same was foreclosed in the circuit court in Orange county, State of Florida, and a decree of sale of foreclosure entered by said court and the real estate sold for a certain sum bid, leaving a deficiency of $4891.10, and that judgment was rendered in said court for said deficiency against the said it. G-. Mayo alone, although appellee was duly served and said court had jurisdiction of her and the said Mayo, and said judgment was rendered on the said note, being the same cause of action sued on in this case, and claimed that the said note was merged in said judgment, and that the same was a bar to this action against her.” In that case the court said at pp. 500, 501, 502:

“ ‘The main and only question to be passed upon by this court is, whether the said deficiency decree rendered by the Florida .court against B. G-. Mayo alone was an extinguishment of the cause of action against appellee as well as B. G-. Mayo. It is not disputed that a judgment or decree against one of two joint principals releases the other, and this rule appears to be fully established and recognized. (Lawrence v. Beecher, 116 Ind. 312, 19 N. E. Rep. 143.) The case cited holds that where there is a deficiency decree against one of several makers of a promissory note, and no disposition of the case as to the others is directly made further than to decree that their equity of redemption is barred, the cause of action is barred in a subsequent suit on the note against those not included in the deficiency decree. It would not be the case, however, where there was simply a decree of foreclosure; but a subsequent deficiency decree is in its effect a personal judgment upon the note, and where the court has jurisdiction against all the several makers and only renders judgment against one, this extinguishes his cause of action against the others. ... In a case like the Indiana case, where a deficiency judgment was taken against one of several makers of a promissory note, and no other disposition made by the court as to the others, the cause of action is merged in the judgment, and those against whom no judgment is taken are released. . . .
“ ‘The following rule is laid down in Lawrence v. Beecher, 116 Ind. supra: ‘ ‘Where a plaintiff voluntarily elects to take a personal judgment against one of a number of defendants severally liable, without in any way preserving his rights against others then equally liable before the court, the presumption is that he is content with the judgment, and that his contentment is due to the fact that he received at the hands of the court all the relief that he was justly entitled to receive. If he desires to prevent this result he must take some steps, as he well may, to counteract this presumption. If he take no such steps, but elects to take a final judgment against one of the defendants and takes only a judgment of foreclosure against the others, he cannot justly complain if this presumption prevails against him, since he must be deemed to have obtained all the relief to which equity and justice entitle him.” The plaintiff should not be allowed “to disturb the courts and vex the parties with many actions.” ’ ”

The question before us was not present in the Mayo case. There the husband and wife executed the note secured by the mortgage. Upon the foreclosure of the ■■ mortgage the plaintiff took a deficiency decree against the husband alone. All that the court held in that case was that the wife was released from personal liability on the familiar principle that where two persons, liable jointly or jointly and severally, are joined as defendants in an action and the plaintiff elects to take a judgment against only one of such defendants without in any way preserving his rights against the other, the cause of action is merged in the judgment and the defendant against whom no judgment - is taken is thereby released. The Mayo case followed the rule laid down in the Indiana case, Lawrence v. Beecher, supra, but that rule is not applicable to the situation presented in this case. Some of the language used, particularly in the Indiana case, appears to be general enough in scope to be applicable to the question under consideration here, but we are sure that the conclusion reached by the court in that case was only intended to apply to a factual situation such as was presented there, where a deficiency judgment was entered against only one of several equally liable on a mortgage note.

As heretofore shown a grantee who assumes and agrees to pay a mortgage indebtedness thereby becomes personally liable for. it and his liability may be enforced in a foreclosure suit by a judgment for a deficiency. In Jones on Mortgages, vol. 3, sec. 2213, p. 730, this rule is announced: “If the mortgagee does not ask for a personal judgment against the grantee, it may be inferred that he is satisfied with the security upon the property and judgment against the mortgagor and that he abandons his claim against the ven-dee.” Searing v. Benton, 41 Kan. 758, is cited as authority for this statement. It appeared therein that Charles E. Tucker and Elizabeth Tucker, his wife, had executed a note and mortgage securing same to one A. B. Searing and that thereafter the Tuckers conveyed the property to Betsy F. Benton, who assumed and agreed to pay the mortgage indebtedness. Thereafter Searing instituted a proceeding to foreclose his mortgage, in which he procured a decree of foreclosure and a personal judgment for the deficiency only against the makers of the note. In that case the court after stating that the mortgagee could unquestionably, if he had so desired, have also obtained a personal judgment against the grantee, Mrs. Benton, said at p. 762:

“In this case it is in evidence that he commenced his action for foreclosure of this mortgage and asked for a personal judgment against the Tuckers for the sale of this land, and only claimed that Mrs. Benton’s rights were inferior to his under the mortgage. It may be fairly presumed that he thought his security on the land was ample, and that the personal judgment against the makers of the note was sufficient, and that he did not care for a personal judgment against Mrs. Benton.”

Aside from the foregoing rule enunciated by Jones, we think that the doctrine of res judicata is properly invoked by defendant and that plaintiff is precluded from recovery herein. While, as heretofore stated, it is not obligatory for the plaintiff in a foreclosure suit to ask for or to secure a judgment against the defendant or defendants personally liable for the deficiency, in our opinion, if a mortgagee does exercise his right under the statute to procure a deficiency judgment against any defendant so liable, he is bound in that proceeding to also exercise the same right against any other defendant who is a necessary party and who is personally liable and personally before the court, and, if he does not, he should be barred from seeking a personal judgment in a subsequent proceeding against any such defendant. If a mortgagee does not exercise his right under the statute to demand and procure a personal judgment for the deficiency against any defendant in the foreclosure proceeding he is clearly entitled to pursue his remedy at law against anyone personally liable for the balance due on the mortgage note or bonds as represented by the amount of the deficiency. On the other hand, it seems to us that if he does secure a personal judgment for the deficiency in the foreclosure proceeding against any defendant therein and it appears that he could have just as readily procured a similar judgment against another defendant in said proceeding and that he did not do so, he should be precluded from harassing the court and such other defendant with another action on the same claim. The issue sought to be litigated here was open to plaintiff in the foreclosure case. It is again raised here for the sole purpose of securing the same relief which plaintiff could have but failed to secure in the former suit. (People ex rel. Modern Woodmen of America v. Cir cuit Court of Washington County, 347 Ill. 34.) We are impelled to hold that plaintiff should not be permitted to maintain this action and that the action of the trial court in sustaining defendant’s motion to strike plaintiff’s complaint was proper.

For the reasons stated herein the order of the municipal court is affirmed.

Order affirmed.

Friend and Scanlan, JJ., concur.


author: Mr. Justice Friend

text:
    Vaden Veazey, Appellee, v. Charles Summers et al., Appellants.
    Gen. No. 40,369.

      Heard in the second division of this court for the first district at the October term, 1938.
    Opinion filed April 2, 1940.
    Cochrane & George, of Chicago, for appellants.
    Joseph E. Winterbotham, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Defendants, Charles M. Summers, Henry Schuh and John Connell, seek reversal of a decree which found that they, together with Edward McCormick (who does not join in the appeal), had by means of false and fraudulent representations and practices, induced plaintiff to purchase certain subdivided lots or parcels of land, situated in Cook county, and ordered them to return specific sums paid by her on account of these purchases, in addition to other relief granted. The decree, following* the master’s report and recommendations, specifically found that malice was the gist of the action, and ordered, among* other things, that execution on a capias ad satisfaciendum issue against the several defendants.

From the testimony adduced before the master it appears that plaintiff had operated a beauty shop on North Clark street, Chicago, for some 16 years prior to 1927. She was then 45 years of age and had the equivalent of a high school education. Prior to the series of transactions with defendants, she had bought subdivided property in Niles Center on contract from A. A. Lewis & Co., subdividers. In November, 1927, defendant McCormick visited her place of business to solicit the sale of her beauty shop. As the result of conversations had with him, she visited the principal offices of Summers and Schuh, in the McCormick building on Michigan boulevard, Chicago. She was there conducted to McCormick’s desk and told him of her dissatisfaction with the lots she had purchased from Lewis & Co. in Miles Center. McCormick told her of the subdivided lots in Harvey, Illinois, which he described as attractive investments, and on the following Sunday plaintiff accompanied McCormick to Harvey where she inspected the lots and entered into three transactions with defendants involving the purchase of lots on Western avenue arid 150th place for $17,500; lots on Dixie Highway, also in Harvey, for $22,750, and lots on Wood boulevard in Harvey for $25,000.

It is urged at the outset that McCormick was a freelance real estate broker and was never employed as salesman for defendants Summers and Schuh. The facts disclose that when plaintiff first visited the office of Summers & Schuh she was ushered to McCormick’s desk, had a lengthy conversation with him and thereafter accompanied McCormick to the subdivision office at 150th place and Western avenue, where she inspected the subdivided lots and entered into the first contract. On this occasion she had lunch at Summer’s office and it was late in the afternoon when she returned home. Summers, Schuh and McCormick were in the automobile which conveyed her back to the city. Summers got out of the car on the way back, and Schuh and McCormick drove her to her home on the north side. McCormick requested $200 as earnest money on the first transaction and on the evening of that day plaintiff gave him this sum, for which she obtained a receipt made out on a partially printed blank signed by McCormick as salesman for Summers & Schuh. On the top of this receipt there appears the printed legend: “Summers & Schuh — Union Bank of Chicago — Trustee. McCormick Bldg., 332 S. Michigan Ave., Chicago,” and on the bottom of the blank, the words, “Make checks payable to — Summers & Schuh.”

In order to finance the first transaction plaintiff delivered to McCormick 24 shares of Sears Roebuck stock, which were sold by Summers & Schuh for her account for the net amount of $2,430.82. The receipt given for the stock was signed: ‘ ‘ Summers & Schuh, Per E. C. McCormick,” and Bristol & Company, the brokers who negotiated the deal, sold it on. account of Summers & Schuh. This transaction required plaintiff to make monthly payments of $100 each. In examining the exhibits introduced in evidence we find a number of them signed by Summers & Schuh, “By M. C. Johnson,” and others by Summers & Schuh, “per E. C. McCormick.” Defendants take the position that McCormick had a broker’s license and that he, like numerous other brokers, was privileged to sell lots in any of the Summers & Schuh subdivisions, but that he was not their salesman. McCormick testified that he sold Summers & Schuh property on commission, and that beginning in 1927 he was salesman for Summers & Schuh for two or three months, receiving 8 per cent on sales, and later, as sales manager for four or five months, he received 14 per cent commission. It is also argued by defendants Summers and Schuh that forms of receipts, similar to the one given to plaintiff, for the $200 which she first paid were printed and bound in pads and left on the desks in their office so that any broker might have access to them. Even if this were true, the subsequent receipts given plaintiff and the evidence adduced before the master clearly indicate that McCormick was a salesman in the employ of defendants Summers and Schuh, and the master and court were fully justified in so finding.

The first transaction entered into between the parties involved three lots on the corner of 150th place and Western avenue, purchased by plaintiff for $17,500. The false representations alleged to have been made with reference to this subdivided property were that (1) an opposite corner had sold for $400 a foot; (2) that a contract had been let for paving Western avenue; and (3) that the lots were worth $400 a foot. Preceding this transaction McCormick displayed to plaintiff a ‘ ‘ dodger, ’ ’ which bore at the top the following legend: “Western Avenue the street WHICH MADE INVESTORS FORTUNES. PRICES BELOW ARE QUOTED BY OlGOTT GUIDE AND OTHER REAL ESTATE APPRAISERS from actual sales.” In two columns underneath this legend appear the comparative prices purporting to have been based on actual sales made in 1923 and 1928. One of the items in this table shows that lots at 150th and 151st streets had in 1923 sold for $20 a foot, and in 1928 sold for $400 a foot, showing an increase of 2,000 per cent. At the foot of the dodger appears the following: “The above prices are compiled FROM BALES MADE ON THIS STREET. Ho ONE SHOULD BE SO SKEPTICAL AS TO DOUBT THE FUTURE OF THIS LONGEST street in Chicago. A few parcels can yet be bought AT $150.00 TO $200.00 PER FOOT, ON TERMS NEVER BEFORE quoted. Don’t let an opportunity slip by this time ! —Get your foothold — Hummers & Hchuh. ’ ’ To show the falsity of the representation that the corner opposite the lots purchased by plaintiff had been sold for $400 a foot, her counsel produced in evidence the so-called Heaford contract, showing the sales price of lots in the immediate vicinity to have been $226 a foot.

With reference to the representation made as to the paving of Western avenue plaintiff testified that McCormick told her that a contract had theretofore been let for this improvement. To establish the falsity of the representation plaintiff produced Frank E. Foster, city attorney of Harvey, and Paul G. Bobertson, the city engineer. Foster testified that no contract had been prepared for the paving, and Bobertson, the city engineer, stated that no plans had been made for paving Western avenue. Ho evidence was offered to rehut this testimony. Defendants argue that this was a representation of law, but this contention is untenable. If the statement was made by McCormick that a contract had theretofore been let for paving Western avenue, it was a representation of fact, which would undoubtedly have entered materially into the inducement made to procure the purchase of these lots by plaintiff. McCormick, of course, denied having made the statement, but the master and chancellor were evidently of opinion that the representation had been made.

The third element of fraud and deceit complained of is that the three lots purchased by plaintiff on Western avenue had a fair cash market value of $400 a foot. To establish the falsity of this representation plaintiff produced eight real estate men, all of whom, except one, resided or had offices in Harvey. They placed valuations on the 75 feet purchased by plaintiff on Western avenue as ranging from $733 to $4,500. Their average valuations on these lots were $2,529. The sales price was $17,500, and plaintiff contends that she was overcharged to the extent of $14,971; in other words that the value of these parcels of land was about 17.5 per cent of the price charged, and that this was so grossly excessive as to be of itself sufficient evidence of fraud. Defendants produced no evidence to rebut these valuations; they merely denied that any such representations were made, but the master, whose findings were approved by the chancellor, found otherwise.

The second transaction between the parties was consummated in January, 1929. With reference to this transaction plaintiff contends that McCormick, who had by this time been advanced to the position of sales manager for Summers & Schuh, represented that no property in the Summers & Schuh subdivision on Dixie highway had sold for less than $550 a foot; that the Olcott Guide valued the property at $500 a foot; and that the fair cash market value was $550 a foot. "In connection with this transaction plaintiff produced the contract of Margaret Kelly for lots 8, 9 and 10 in block 1 of that subdivision, dated November 8, 1926. This property was on the northwest corner of 149th place and Dixie hig’hway. The aggregate price paid by Mrs. Kelly for the three lots was $18,500, and there being 98 feet it amounted to $188 a foot.

With reference to the representation that the Olcott Guide had valued the Dixie highway lots at $500 a foot, a stipulation was entered into between the parties upon the hearing that Olcott’s Guide did not value any property south of 138th street, east or west of Western avenue. In view of this stipulation it is obvious that if the representation was made it was untrue.

In connection with the representation that the fair-cash market value was $550: a foot, plaintiff again produced the same eight real estate appraisers whose valuations ranged from $1,100 to $8,300 for the property purchased by plaintiff, making an average valuation of $5,742. The sales price for the lots in the Dixie highway subdivision was $22,750. Plaintiff contends that there was an overcharge of $17,008, which was so grossly excessive as to constitute fraud. Here again defendants denied that the representations were made, but the master found otherwise.

The third transaction covered 13 lots on Wood boulevard sold to plaintiff for $25,000. The deed when delivered to plaintiff conveyed lots on Page avenue instead of Wood boulevard. Page avenue was an untraveled street. Defendants took the position that this conveyance was a mistake and offered to rectify it upon the hearing. In connection with this transaction defendant Connell, who was also a salesman for Summers & Schuh, and McCormick received from plaintiff a cashier’s - check for $2,500. Summers & Schuh claimed to have no interest in this transaction and took the position that it was an independent venture by Connell and McCormick. When this suit was instituted Mildred Winans and Della Leonard were made defendants because they had previously owned these lots and it was not known what interest they had in the transaction. The same attorney who represented Summers & Schuh appeared for them and filed their answers. They were later served with subpoena to appear as witnesses. Before testifying* they consulted with the law firm of Cutting, Moore & Sidley, and were advised that they needed an attorney to represent them. They thereupon retained Warren Pease, who was substituted as counsel. When called to testify they produced an exhibit appearing on the letterhead of Summers &! Schuh, subdividers, showing receipt from them of a quitclaim deed for the lots which were the subject of the Wood boulevard transaction. When plaintiff purchased these 13 lots she gave Connell a cashier’s check for $2,500. Connell in turn delivered it to McCormick. Earlier in the hearing* Summers had testified “that he received no part of the $2,500; that he never got a dime; that he knew nothing about the transaction pertaining* to the Wood boulevard lots, until he was arrested and taken to the Criminal court. ’ ’ When McCormick and Connell took the stand as witnesses they were cross-examined as to the disposition of the $2,500 in an effort to show that Summers & Schuh had received part of the money. Before testifying* McCormick had made an affidavit dated September 19, 1930, wherein he stated that on the completion of the sale of the lots supposed to be on Wood boulevard he took $1,000 in currency to the office of Summers & Schuh and personally gave it to Summers; that Summers congratulated affiant for having made the deal, and thereupon disbursed the $1,000 as follows: $333 to Connell, $500 to McCormick, and retained the sum of $166.67. Because of the discrepancies in the testimony of Connell and McCormick the exact facts could not be ascertained from their evidence, but later in the hearing* one Raymond Fitzgerald, a former salesman and employee of Summers & Schuh, testified that Connell had told him what disposition was made of the $2,500. Fitzgerald testified that another salesman, named Sanders, knew that McCormick and Connell were selling the real estate to plaintiff and that they were concealing it from Summers, and Sanders thereupon “tipped Summers off to it,” and that Summers came in excited and “was going to give him [Connell] the devil”; that McCormick afterward learned that Summers knew about it and thereupon agreed with Connell to tell Summers that they got only $1,000, “so that if they had to split with Summers, he would not get so much. ’ ’ It was subsequently shown from records of the Jackson Park National Bank and the Irving State Savings Bank, that Summers & Schuh participated in this transaction to the extent of $166.67, being their share of the $2,500 cashier ’s check delivered to Connell and McCormick. The explanation for the amount of this item is that the distribution was made upon the misrepresentation of McCormick and Connell to Summers that only $1,000 in currency had been obtained from plaintiff.

According to plaintiff’s testimony the 13 lots on Wood boulevard were represented to be worth $32,500, or $100 a foot, and she was led to believe that she was receiving a bargain at $25,000, the sales price. She had paid on account of this purchase $2,500 cash, and had made a mortgage to the sellers in the sum of $10,000, and she received certain credits for other real estate contracts surrendered by her. Mildred Winans and Della Leonard, who had been the owners of the property, did not know that it was being sold for $25,000, nor were they advised that $2,500 cash on account had been paid; neither did they know that plaintiff had turned over one contract on which she had paid $9,000, and a note for $3,500. As a result of these con-cealments they had parted with their title and had a $10,000 mortgage back. Upon the hearing McCormick and Connell testified that they were to receive all over $10,000. McCormick tore up the $3,500 note from plaintiff and returned to her the Lewis contract on which she had paid $9,000. All this was done subsequent to the time when Connell in a conversation with plaintiff told her that she had been “gypped out of her eye teeth.” After the transaction was consummated and before plaintiff discovered that she had not been deeded the lots on Wood boulevard, but on another street, she had paid $300 interest on the $10,000 mortgage, and the master found that she was entitled to recover from Connell $3,977.54, with interest, which is made up of the following items: $2,500 cash; $300 interest; and the amount of a judgment for $1,000 with interest, aggregating $1,177.54, which plaintiff had theretofore suffered. The master also found that she was entitled to recover from McCormick, Summers and Schuh, the aggregate amount of $8,875.58. As to the Wood boulevard transaction the same eight real estate appraisers testified that the 13 lots purchased by plaintiff had a fair cash value ranging from $3,250 to $8,450, or an average of $6,236. The sales price for this property was $25,000, and plaintiff takes the position that the overcharge of $18,774 was so grossly excessive as to constitute fraud.

The brief recital of the circumstances attending these transactions is taken from a voluminous record. Defendants, of course, denied the representations alleged to have been made, and they argue that if such representations were made they were representations of law and not of fact, and constituted opinions, trade talk, puffing, and promises of future profits, and are therefore not fraudulent. We have set forth the fraud and deceit claimed with reference to each transaction, and although there may have been some element of opinion, puffing, exaggeration and promise of future profits made in the course of the various conversations with plaintiff, it is evident from the dodger herein-before described and from the grossly excessive prices paid by plaintiff for these various lots, pursuant to false representations made to her, that she was greatly overreached. In connection with the Wood boulevard property it is apparent that defendants McCormick and Connell had entered into an agreement to withhold the facts from their principal, Summers & Schuh, and that the latter participated in the division of the down payment and retained part of the proceeds. The master who heard the evidence and had an opportunity to observe the witnesses found that plaintiff had sustained her bill, and a careful examination of the record convinces us that his findings are amply supported by the evidence. Various legal propositions are advanced by defendants as ground for reversal. At the conclusion of these various transactions, plaintiff had become so financially exhausted that she told defendants that she wanted to be through with the whole thing and asked them to make an adjustment. After lengthy conferences with defendants she deeded back the lots purchased at 150th place and Western avenue and the Dixie highway property, and assigned all of her interest in the contracts to Summers & Schuh, who in turn gave her a credit of some $8,000 which could be applied on the purchase of other lots in any of their subdivisions within the period of one year, and it is argued that because she deeded back this property plaintiff cannot maintain her action. The cases cited in support of this proposition deal with circumstances where individuals deeded property to third persons and then, claiming* to have been defrauded, sought restitution. Such were the circumstances in Fisher v. Burks, 285 Ill. 290, and Rubinelli v. Envoy Bldg. Corp., 264 Ill. App. 94. In the case at bar, however, Summers & Schuh received back the title; it was not conveyed to third persons, and when plaintiff reconveyed the lots to defendants, she did not know of the alleged frauds that had been practiced on her. She discovered the false representations later and now invokes the doctrine that under the circumstances of this record “fraud vitiates everything it touches.’ ’ After the lots had been reconveyed to defendants, plaintiff still owed them some $17,000. The evidence is clear that she did not know until late in October, 1929, of the fraud that had been practiced on her, and this was subsequent to her deeding the property to Summers & Schuh, and after the letters of credit had been given to her. Defendants argue that she should have known or investigated the circumstances of these various transactions and the frauds of which she complains before she deeded the property back to them. These transactions may show her gullibility, but they do not preclude a court of equity from affording relief in view of the overwhelming evidence of fraud presented by this record.

It is urged that to justify a court of chancery in canceling contracts on the ground of fraud and decreeing the repayment of money it is necessary that the proof must be of such a clear and convincing nature that the mind is well satisfied that the charge is true, and that the alleged misrepresentations must relate to a material matter. While these elementary propositions of law may be conceded it is apparent that the proof presented by the record is so clear and convincing as to justify the decree entered. The representations made were material. Questions of value, when grossly exaggerated, may constitute fraud. (Schwarz v. Reznik, 257 Ill. 479; Heinrich v. Norton, 219 Ill. App. 86.) And certainly representations as to actual sales and that contracts existed for paving the highway adjacent to the property, are not representations of law but material representations of fact which may be the basis for rescission on account of fraud.

In conclusion it is argued that the special finding of malice was not justified because there was no allegation of malice. However, the complaint alleged that certain values were represented to be market values; that certain lots had been sold for certain prices; that a. contract had been let for paving; that Olcott’s Guide valued the property in question; that plaintiff was unfamiliar with values in Harvey, relied on the representations, not knowing them to be false; that they were false; and that she paid her money upon the faith of the representations made. It seems to .us that these allegations when sustained by proof satisfactory to the master and chancellor bring the case within the classification of wrongs showing evil intent, design or purpose, and imply that the guilty parties were actuated by improper motives. The false “dodger” issued by Summers & Schuh; the representations of McCormick; the deceit of McCormick and Connell, practiced upon their own principal, as well as plaintiff, and the participation by Summers & Schuh in the moneys paid by plaintiff, all so closely interwoven as to really constitute one continuing transaction, indicate circumstances upon which a finding of malice may be predicated. (Corwin v. Tillman, 255 Ill. App. 230; sec. 5, ch. 77, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.155].)

This case was tried at length before the master. Voluminous testimony was adduced. The master went to Harvey to hear the evidence as to the valuations and the hearing was fairly conducted. Defendants make no contention that any errors were made in the reception or exclusion of evidence. We find no convincing reason why the decree should be reversed; it is therefore affirmed.

Decree affirmed.

Sullivan, P. J., and Scanlan, J., concur.


author: Mr. Presiding Justice Matohett

text:
    Dorothy Rasmussen, Appellee and Cross Appellant, v. National Tea Company, Appellant and Cross Appellee.
    Gen. No. 40,840.
    Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed April 8, 1940.

      Coulter & Kelly, of Chicago, for appellant; Will A. Kelly, of Chicago, of counsel.
    Andalman & Arons, of Chicago, for appellee; Maxwell N. Andalman, Norman H. Arons and Avrum N. Andalman, of counsel.
   Mr. Presiding Justice Matohett

delivered the opinion of the court.

In an action in tort for personal injuries and upon trial by jury a verdict for plaintiff, with damages assessed at $700, was returned. February 17, 1939, motions of defendant for judgment non obstante veredicto and for a new trial were overruled and judgment entered for the sum of $500. The judgment order as first entered recites that plaintiff remitted $200 from the verdict. On March 8, 1939, less than 30 days from the entry of the judgment, on motion of plaintiff, that judgment order was amended to recite that the court remitted $200 from the verdict over the objection of plaintiff. Two days prior thereto, March 6, 1939, defendant served notice of appeal and proof of service was filed in the municipal court on March 7th. Plaintiff gave notice of a cross-appeal, and defendants on March 13,1939, filed an appeal bond, which was on that date approved by the court.

The suit grew out of defendant’s ownership and control of premises in Evanston, Cook county, Illinois, known as 1579 Maple street. There was a vacant storeroom in the building on these premises in which, by permission of the owner, rummage sales, so-called, were often held. On November 1,1935, the Tri Deltas of the Northwestern University campus were allowed to take possession of this store for the purpose of arranging and holding such a sale. A sign announcing the sale to be held was displayed in the window on the premises, but the evidence indicates that no actual sales were made until the following day, which was November 2.

Plaintiff, who is married and the mother of five children whose ages range from 2 to 11 years, testified that November 1, 1935, the children having a day off from school, she was taking them to the Wieboldt store on Davis street in Evanston for the purpose of purchasing shoes. Maple street was on the way to the Wie-boldt store, and as they passed the store in question plaintiff saw the notice of the rummage sale in the window. She left the baby in its carriage and with the other children went into the store (she says) to buy a play coat for the little girl. Plaintiff testified she walked up the steps into the store and inquired of one of the ladies about the kind of garment she wished to buy. As she came down the steps toward the baby carriage she did not see an iron projection from one of the steps. Her foot struck it, was twisted and she thrown forward and severely injured.

Mrs. Williams, one of the ladies who was at the store part of the day to help get ready for the sale, testified for defendant that some people came to the store but were not let in. She does not remember that she saw plaintiff there. She did not know that anything unusual happened on that day.

Mr. Hawldnson, defendant’s manager, who gave permission to hold the sale, testified that he first heard of the accident on November 9.

There is no dispute that plaintiff fell and was injured nor claim that the judgment is excessive if plaintiff is actually entitled to recover.

Defendant contends for reversal because in two instructions the court told the jury in substance that other essential elements of liability having been proved, plaintiff was entitled to recover if “she was lawfully upon the premises.” It is said these instructions disregarded the theory on which plaintiff brought her suit, and the one issue of fact in the case, namely, as to whether plaintiff was a mere licensee or an invitee while upon the premises. Defendant cites Deach v. Woolner Distilling Co., 187 Ill. App. 524, 525; and Peoria, B. & C. Traction Co. v. O’Connor, 149 Ill. App. 598, 603, with other cases and says the court erred in not submitting to the jury this issue as to whether plaintiff was upon the premises as an invitee.

The testimony of plaintiff as to the circumstances under which she went upon the premises was not denied. The evidence is uncontradicted in that respect. She saw in the window the sign announcing a sale to be held. The sign read: “Rummage Sale — Saturday, November 2nd.” There were no goods at that time in the window but the sign announcing the sale to be held amounted to an invitation to persons interested to enter upon the premises either for the purpose of purchasing or of ascertaining with certainty the goods which were to be on sale, etc. McHugh v. Rubenstein, 185 Ill. App. 235, is a case well illustrating this rule. As we have already said, the evidence was not disputed and there was no evidence tending* to show plaintiff was either a trespasser or a licensee. The instructions were, therefore, as a matter of fact, more favorable to defendant than the law justified. Defendant cannot be heard to complain of such instructions. Klinck v. Chicago C. Ry. Co., 262 Ill. 280, 298.

Neither can it be said that the evidence tending to show negligence of defendant is in doubt. Concrete steps led from the street to the door of this storeroom. These steps were in a state of disrepair which had apparently existed for a long time. From one of the steps the piece of old pipe projected. This pipe is clearly disclosed by a picture of the premises in evidence. The plaintiff plausibly contends that the step from which this pipe projected was a part of the public street. The building* on the premises stood back about two feet from the main sidewalk. A strip of flagging* at sidewalk level connected the main sidewalk and the building and ran along the entire front of it. The concrete step was maintained on this strip of flagging and connected the flagging* and the sidewalk with the platform above. The platform was located about the center of the building and fronted the building for a distance of about 25 to 30 feet and was of a width of between 4 and 5 feet. The flagging and step and the platform were intended for the common use of tenants, occupants, customers and visitors. These served four doors of the building-, three of which led into stores on the premises and one to a flat upstairs. The step was raised above the level of the flagging and the sidewalk. In the front center of the platform was an iron column resting on a high beam which supported the upper floor. In front of and below this column and within the top of the step was a round hole about 6 inches across encircled by an iron ring or frame in which rested the remains of a tile drainpipe which was broken, its jagged points sticking up without protection of any kind. Plaintiff contends that this projection was on a part of the public way, and that defendant, therefore, cannot be heard to say that plaintiff was not invited to use it. Plaintiff cites Tomle v. Hampton, 129 Ill. 379, 383, and the contention is plausible but its determination is not necessary to a decision of the case.

As to cross errors, plaintiff claims the trial court was without authority to order a remittitur without her consent and over her objection. This contention must be sustained. To hold otherwise would be to trespass on plaintiff’s right of trial by jury. Defendant, however, says the trial court erred in receiving and considering the affidavit of plaintiff’s counsel and amending the judgment order so as to show that the remittitur was actually entered over plaintiff’s objection. Less than 30 days had elapsed from the entry of the order. The court had power and authority to amend its judgment order irrespective of any affidavit. Laws of 1933, p. 678; Act of June 21,1933; Smith-Hurd Ann. Stats., ch. 110. Historical note to sec. 94 of the act, sec. 218 of the statute. The judgment was in the breast of the court until the expiration of 30 days from the date of its entry and the court had full power in the premises. The defendant says the affidavit filed by plaintiff’s attorney may not be considered because it is not in the report of proceedings. This is no longer the law. Ill. Rev. Stat. 1939, ch. 110, sec. 74, par. 198 [Jones Ill. Stats. Ann. 104.074]; Kelly v. Powers, 303 Ill. App. 198, 201.

Plaintiff asks this court to enter judgment here for $700, the amount of the verdict. We are not aware of any power or authority conferred on this court so to do. If plaintiff will file a waiver of this error within 10 days the judgment for $500 will be affirmed. Otherwise, for the error argued by plaintiff, the judgment will be reversed and the cause remanded for another trial.

Affirmed upon plaintiff filing waiver of cross-error within 10 days; otherwise reversed and remanded.

O’Connor and McSurely, JJ., concur.


author: Mr. Presiding Justice Matchett

text:
    Ralph Martin and Company, Inc., Appellant, v. J. D. McCue, Appellee.
    Gen. No. 40,868.

      Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed April 8, 1940.
    Lewis M. Levinson, of Chicago, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff assignee sued to recover $849 claimed to be due from defendant to the Crystal Lake Country Club, a corporation organized under the laws of Illinois, not for profit (Smith-Hurd Ann. Stats., ch. 32, par. 158, p. 433 [Jones Ill. Stats. Ann. 32.251]) of which defendant was formerly a member. The affidavit of merits averred defendant resigned from the club, asserted he was not indebted as alleged and pleaded the bar of the five-year statute of limitations. Plaintiff replied denying defendant’s resignation was valid and averring the five-year statute was not applicable. The facts were stipulated. Upon trial by the court there was a finding for defendant with judgment, and plaintiff appeals. __

The facts were that defendant made a written application for membership which stated the membership would be subject to annual dues of $100, payable quarterly in advance, and would be “transferable subject to the rules and regulations governing the club.” The application was accepted, and defendant elected a member by the board of directors. A certificate of membership was issued to him, which states that his membership “is subject to all by-laws and regulations governing this class of membership”; that it is transferable by assignment upon the books and surrender of the certificate as provided by the by-laws.

At a special meeting of the members held August 26, 1930, pursuant to notice, a resolution was passed which levied an assessment of $100 against each member, payable in four equal instalments of $25 each, the first instalment to become payable on September 1st. At the same meeting a second resolution provided the annual dues should be increased to $175, to become effective September 1, 1930. Defendant was notified in writing of this action.

September 30, 1930, defendant, who was a member of the board of directors, tendered his resignation. On the same day he wrote the board tendering his resignation as a member of the club. His letter states: “I am attaching my membership certificate No. 504 which you may dispose of when possible. Anything realized on this membership you may send me when sold. I am attaching my check for $26.65, which is my dues and house account. There may be a small house account for the month of September, and if you will mail me this I will be glad to forward my check.” The letter also assured the club that defendant’s reason for resigning was distance from the club making it impracticable for him to use it. October 16, 1930, defendant paid to the club the sum of $26.65, $10.65 for August house account and $16 for the monthly instalment of annual dues of $175 for the month of September. It was customary for members to pay annual dues in monthly instalments. Defendant did not pay the $100 special assessment levied August 26,1930. He has not paid the balance of annual dues for the year beginning September 1,1930. No statement claiming these to be due was ever sent to him by the club.

At the time defendant became a member of the club, article 3, section 5 of the by-laws provided: “Upon the death or retirement of a member in good standing, his certificate of membership shall he charged with regtilar accruing dues to the extent of the extinguishment of its par value, unless such certificate is theretofore duly transferred to a regularly elected member of the Club.” Article 3, section 6 of the by-laws provided: “A statement showing the amount due the club, including his dues, shall be sent by mail or otherwise to each member, who is indebted to the club, on the first day and the fifteenth day of each month, and when such dues or other indebtedness of any member shall remain unpaid for a period of one month, after date of such statement sent, his membership may be declared forfeited by a vote of the Board of Directors and he shall thereupon cease to be a member .of the Club, but shall never-the-less be liable to the club for the payment of all unpaid dues and other indebtedness.” This section also provided for reinstatement. Article 4, section 1 of the by-laws vested the control and management of the club in a board of nine directors to be elected by the members. Article 10 provided that the by-laws might be amended by a majority vote of the members present at any regular or special meeting of the club.

February 24, 1931, the board of directors accepted the resignation and ordered the membership certificate canceled. As already stated, no statement of indebtedness was ever thereafter sent to defendant nor any claim made that any sum was due from him. May 25, 1934, the club was adjudged bankrupt. A trustee in bankruptcy was thereafter appointed, and November 20, 1936, by authority of the United States District Court, the claim was assigned to plaintiff. This suit was begun, on June 15, 1937.

Defendant has not appeared in this court in support of the judgment entered in his favor. Nevertheless, the judgment must be sustained; in the first place, because plaintiff failed to prove an indebtedness against defendant, and, in the second place, because assuming there was proof of liability prima facie the action was barred by section 15 of the statute of limitations (see Ill. Rev. Stat. 1939, par. 16 [ch. 83; Jones Ill. Stats. Ann. 107.275]).

The rules of law applicable to the relationship which exists between the corporation organized not for profit and its members have been developed out of customs of our social life which bring groups of people with a common purpose together in associations of this kind. These rules are well stated in Boston Club v. Potter, 212 Mass. 23, 98 N. E. 614, Ann. Cas., 1913 C, p. 397; Anderson v. Amidon, 114 Minn. 202, 130 N. W. 1002, Ann. Cas., 1912 B, p. 987. The relationship arises out of the application of the member, its acceptance by the club and the provisions of the by-laws by which both are to be governed in their relationship to each other. The by-laws seem to contemplate that the relationship between the club and the member may be ended at the option of the member while in good standing, and thal the member is obligated for the payment only of such dues and assessments as have become due and payable at the time of the severance of the relationship. Article 3, section 5 of the by-laws expressly provides that upon the death or retirement of a member his certificate of membership should be charged with the regular accruing dues to the extent of the extinguishment of its par value. The stipulation of facts here shows that this was in the contemplation of the parties and that it was the understanding of defendant that his membership had a value which would meet these and leave something to be returned to him. Apparently, the board of directors after holding the matter under consideration for some time agreed and ordered that the certificate of membership should be canceled. No claim was ever made thereafter by the club that anything whatever was due from defendant. That claim seems to have been first made by the assignee of the trustee. The acceptance of the certificate and its cancelation by the board must be regarded as a satisfaction of every claim against defendant. If, however, we assume under the facts that defendant at the time his resignation was offered (September 30, 1930) or accepted (February 24, 1931), a claim existed the claim would be barred by the five-year statute of limitations. Plaintiff argues that this section of the statute is not applicable for the reason that the action is based upon a written contract. Plaintiff says that the contract sued on is a written one composed of the application, the certificate and the by-laws, and Jones v. Supreme Lodge Knights of Honor, 236 Ill. 113, 86 N. E. 191 and Coats v. Chicago R. I. & P. Ry. Co.,, 134 Ill. App. 217, are cited.

The Jones case was an action based upon a benefit certificate payable to the wife of the insured, who had died before his death, and the by-laws were introduced in evidence to show to whom payment was to be made in that case. It was argued that the admission of evidence as to who the heirs entitled to recover were would make the certificate of benefit an oral contract. The court held that it did not.

In the Goats case plaintiff shipper brought an action against a carrier for failure to observe its common-law obligations to transport. Bill of lading for the goods had been issued shortly after receipt of the property which was to be transported. The court held that the action was based upon the written bill of lading and the 10-year limitation applicable. These cases are clearly distinguishable in that in each the action was based upon a written agreement, while here the action is based on the implied contract arising out of relationship of the parties as disclosed by the evidence.

Plaintiff has cited many cases tending to show that the relationship created by the application, the accept-anee and the by-laws, constitutes a written contract. This is not questioned. The question here concerns the termination of the relationship as disclosed by the acts of the parties. The judgment will be affirmed.

Judgment affirmed.

O’CorrrroR and MoSurely, JJ., concur.


text:
    Isabelle Rowley, Appellee, v. John W. Rust, Appellant.
    Gen. No. 40,878.
    Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed April 8, 1940.
    Coburn & Coburn, of Chicago, for appellant; Louis T. Herzon, of Chicago, of counsel.
    James B. Poynton and Francis X. Poynton, both of Chicago, for appellee; Thomas M. Poynton, of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action under the statute for alleged negligence of defendant, causing the death of plaintiff’s husband and upon trial by jury, there was a verdict for plaintiff in the sum of $7,500, with judgment, from which defendant petitioner, by leave granted pursuant to section 76 of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, § 200; Jones Ill. Stats. Ann. 104.076] and rule 19 of this court and rule 29 of the Supreme Court, has appealed.

April 30, 1935, plaintiff filed her complaint in which she in substance alleged that March 17,1935, while her husband was walking in a northerly direction on Archer avenue (a public highway running north and south in the city of Chicago) and while between 107th and 111th streets (also public highways running east and west and intersecting Archer avenue), he was struck by defendant, who was driving his automobile north on Archer avenue between these intersections; that deceased was in the exercise of due care and was through the negligence of defendant struck, receiving injuries from which he died on March 23, 1935. With other negligence the complaint charged that defendant operated his car in a manner that was not only negligent but wilfully, wantonly and maliciously so. At the close of all the evidence, defendant made a motion for an instructed verdict in his favor which was denied. The verdict of the jury being returned, there were motions for a new trial and for judgment non obstante veredicto which were overruled, and this appeal followed.

Defendant argues that the court erred in denying the motion of defendant for an instructed verdict in its favor and in submitting to the jury an interrogation as to whether defendant was guilty of wilful and wanton negligence. Defendant also contends the evidence shows, as a matter of law, that deceased failed to exercise due care and the legal cause of his death was his own violation of a statute which prevents recovery.

There is little conflict in the evidence. Defendant offered no evidence and was not called as a witness. Paul Verhoye, who on the evening of March 17, 1935, at about 10 p. m., was driving his automobile north on Archer avenue road, testified that there was another car being driven north and about 400 feet ahead of him. The road was a cement pavement and at this place was a 4-way lane which narrowed into a 2-way road near a gas station which stood on the east side of the road. As the witness made the turn he saw an object hit by the car ahead of him. He said: “The object that was hit went to the east side. I stopped ten feet from the man that was hit. He was in the roadway to my right about four feet from the paved portion. His head was lying in a northerly direction, facing the Sag Bridge. He was lying at an angle, his head toward the pavement his feet about four or five feet from the pavement.” He says the car ahead continued until it reached a smoke house, then stopped, made a turn and came back. The weather conditions were fair and the visibility good, but it was a dark night. Verhoye said he was driving about 25 miles per hour. He passed 10 feet beyond the place of the accident, which he was sure happened on the highway. The man who was struck was walking on the highway, and both the lights of defendant’s car were lighted. The witness got out of his car and put a blanket over the injured man. A lady came out of defendant’s car and helped put on the blanket. She was crying. The injured man was unconscious. Verhoye says that it was a dark road and there were no lights on the highway except at one place, the gas station, which was about 400 feet away from where the accident happened. As he drove along the road the windows of his automobile were closed, and it was pretty hard to hear horns. A policeman came and he left his name with the policeman.

John Bolek, an employee of the Corn Products Company, witnessed the accident. He was walking on Archer avenue in a northerly direction. He saw the “dim outline of a man” possibly 200 feet away on the east side of the road, walking north. An automobile went past him and shortly he heard an impact. He was unable to see anything from where he was standing. The car did not stop but continued about a block north. He did not hear the sound of a horn. The witness was walking home with a girl companion.

Evidence was offered tending to show that the deceased was a man of good habits, never drank and was always at home. Mr. Kramer, who testified in this regard, kept a grocery and tavern on the west side of Archer avenue in this vicinity. He said when the deceased was not working he would be over at his place.

These were all the substantial and material facts developed by the evidence. Defendant contends that the instruction in his favor should have been given and that plaintiff, as a matter of law, is precluded from recovery by reason of section 78, par. 175, ch. 951/2, p. 2152, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.207], which provides:

“It is the duty of any person walking along and upon improved'highways to keep on the left of the paved portion, or on the left shoulder thereof, and upon meeting a vehicle when walking on the said paved portion to step off to the left.”

The evidence shows without dispute that the deceased at the time in question did not comply with this provision of the statute and defendant argues, therefore, he was guilty of negligence per se and cannot recover. Defendant relies on Novina v. Padley, 258 Ill. App. 519, which sustains his contention. However, in the later case of Blumb v. Getz, 366 Ill. 273, 8 N. E. (2d) 620, reversing 286 Ill. App. 623, 4 N. E. (2d) 49, the Supreme Court held (two judges dissenting) that notwithstanding this section a pedestrian walking on either the right or left unpaved shoulder of a highway in the day time and off the place provided for traffic could not be considered guilty of negligence as a matter of law. The opinion of the court seems to draw a distinction between a person so walking in the day time and one walking in the night time. The question of contributory negligence is usually for the jury, and the cases show that the courts are reluctant to lay down general rules as to what conduct will and what will not constitute contributory negligence. The right of pedestrians to use the highway is a fundamental right, and in view of this decision we are not disposed to hold that the violation of the statute, even in the nighttime, would, as a matter of law, amount to contributory negligence.

Defendant in this case did not testify. He knew more about the facts of this accident than any other witness. Presumably, he knew, for instance, the speed at which he was going as well as other material facts. In view of the testimony in the record and the absence of any denial on his part, we are disposed to hold the case was properly submitted to the jury.

For another reason, however, the judgment must be reversed. The court submitted to the jury the following interrogatory: “Do you find from the evidence under the instructions of the court that the defendant, John W. Bust, was guilty of wanton and wilful negligence?” The jury returned an answer in the affirmative. We have read all the evidence carefully and there is no evidence in the record which would justify a finding that the injury from which the deceased died was a result of wilful and wanton negligence. It has recently been held by the Supreme Court in Greene v. Noonan, 372 Ill. 286, that where there is a count charging wilful and malicious negligence, and there is no evidence to support such a count, it is error to submit such an issue to the jury. The court in that case said, p. 292: ‘‘ Damages awarded for wilful and wanton conduct arise out of a different consideration from those for negligence merely which may be nothing more than want of due care. In this case the verdict for the death of plaintiff’s intestate was for the full amount allowed by law. It is argued that by reason of his age, family responsibility and income, it was not an excessive verdict, but it is not a question here whether the verdict was excessive, but whether it indicates that the jury, because of the existence of the wilful and wanton charge, was in any way influenced to give the limit permitted by law. A defendant in a case of this character, facing a charge of wilful and wanton conduct, is placed at a serious disadvantage as compared with one charged merely with negligence, and where there is no evidence to support such charge, it is the court’s duty, on motion, to withdraw such charge from the jury, and failure so to do is, by reason of the character of the charge, an error requiring reversal of the cause, for no one may know what influence the charge, though not proved, may have had upon the jury, particularly since it has not been informed that it was not to be considered by it. The distinction in law between wilful and wanton conduct and mere negligence is not a matter with which the average juror is familiar. We are of the opinion that the refusal to withdraw from the jury, on appellants ’ motion, the consideration of the wilful and wanton charges, requires a retrial of the cause.”

If it is reversible error to submit to the jury an issue of wilful and wanton conduct where there is no evidence to support it, certainly the submission by the court of a special interrogatory on that subject is likewise prejudicial error. Moreover, here four instructions given at plaintiff’s request are inconsistent with the theory that defendant was wilfully and wantonly negligent telling the jury it was necessary for plaintiff to prove ordinary care. It follows the judgment must be reversed and the cause remanded for another trial.

Reversed and remanded.

O’Connor and MoSurblt, JJ., concur.


text:
    J. Lester Mee, Appellee, v. Jacob Marks et al., Appellants.
    Gen. No. 40,964.
    Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed April 8, 1940.
    Rothbart & Rosenfield, of Chicago, for appellants.
    Campbell, Clithero & Fischer, of Chicago, for ap-pellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action under the Illinois Securities Act to recover money paid for stock with attorneys’ fees, the court on plaintiff’s motion for summary judgment found for plaintiff in the sum of $3,750 with $750 for attorneys’ fees, and the defendant partnership, appeals. The question is whether the court erred in granting the motion for summary judgment.

The stock was purchased through one, Ben Minturn, who claimed to represent and act for the partnership and while judgment was also rendered against him he does not appeal.

The complaint avers that May 19, 1937, Minturn on behalf of the defendant partnership, sold to plaintiff one thousand shares of the common stock of General Carpet Company, a Pennsylvania corporation, for which plaintiff paid to the partnership $3,750; that the partnership, Marks, Laser & Co., delivered this stock to plaintiff and plaintiff paid them for it; that the stock was of the class known as “Class D” under the securities law; that defendants had not complied with the provisions of the securities law with respect thereto; that the sale was null and void under the statute, and that plaintiff elected to rescind the sale on February 10, 1938, tendered the stock to Marks, Laser & Go. and Minturn, and demanded the return of the money paid which was refused; that plaintiff was compelled to employ attorneys and pay reasonable fees, which were said to be $1,000. The complaint also charges false representations by defendants upon which plaintiff relied.

The answer says that defendants are brokers and carried on a brokerage business, were members of the New York and Chicago stock exchanges; that Minturn was an independent broker; that the sale was made by Minturn individually and that the partnership delivered the stock on Minturn’s behalf. The answer denies false representations or representations of any kind; admits that the stocks were not exempted from the provisions of registration required by the securities law, but says the law was not applicable, and denies that the acts of Minturn were authorized or that the partnership was associated in the sale of the stock.

In support of his motion for summary judgment plaintiff states that prior to May 18, 1937, he carried an account with the partnership, Marks, Laser & Co., in which on that date he had a credit balance of $838.35, as shown by the statement of Marks, Laser & Co. attached; that on that date he purchased the stock through his father, Lester E. Mee, who acted as plaintiff’s agent in that behalf, giving the order through Ben Minturn; that after the order was placed affiant went to the offices of Marks, Laser & Co.; that Minturn was there present purporting to represent Marks, Laser & Co. in the transaction; went with affiant to the cashier’s cage in the office; introduced affiant to the agent of Marks, Laser & Co. in charge, and affiant paid for the stock by instructing the person in charge of the cashier’s cage to transfer the credit balance in affiant’s commodity account in partial payment and by making payments as appear from exhibit 1, which is attached to the affidavit; that thereafter Marks, Laser & Co. issued its receipt to affiant for $3,750, a copy of which is attached; that Marks, Laser & Co. also delivered certificates numbered NJ-946 to NJ-955, inclusive, for the shares of General Carpet Co. stock to the affiant through the mails; copies of the certificates are also attached; that prior to the purchase or receipt of statement, receipt or certificates affiant had not received any prospectus of any kind from anyone relative to the stock.

The exhibits attached are the statement of account issued on the stationery of Marks, Laser & Co. and the receipt issued by them, dated at New York, 5/24/37, to plaintiff which reads: “We have this day Credited your Stock Account $3750.00, Payment of Gen’l Carpét Subs. (Payment as of 5-19).” The receipt also states: “We are responsible only for contracts placed with and confirmed by us and remittances received by us. Correspondent brokers and associate brokers are the agents of their customers and not our agents.”

In support of the motion plaintiff also submitted the affidavit of his father to the effect that pursuant to authority from plaintiff he from time to time gave orders to buy and sell commodities and stocks to Marks, Laser & Co. for the account of plaintiff; that on May 18, 1937, through Ben Minturn, one of the defendants, “who represented himself to be an agent acting on behalf of said Marks, Laser & Co.” he placed an order for 1,000 shares of the common stock of General Carpet Co. with Marks, Laser & Co.; that subsequent to placing the order for the stock and to the payment for the same, exhibits 1 and 2 to the affidavit of J. Lester Mee, were delivered to affiant’s office by a United States postman in an envelope bearing the name Marks, Laser & Co., which was postmarked Chicago, Illinois.

In support of the motion plaintiff also submitted the affidavit of Joseph Adler, assistant trust officer of the Corporation Trust Company, transfer agent of General Carpet Company. His affidavit is to the effect that he had full knowledge of the books and records of the corporation relating to the transfers of stock, and that the certificates here involved were issued in the name of J. Lester Mee, and that the shares of stock representing the certificates were transferred from certificates numbers NJ-720 to NJ-729, inclusive, for 100 shares each, standing1 in the name of Marks, Laser & Co.

The affidavit of Raymond F. Fischer was also attached showing that in his opinion a reasonable attorney’s fee for the work done was $750.

As against the motion the defendants submitted the affidavit of Morton M. Weil, one of the partners, who says “that Marks, Laser & Co. at no time employed Ben Minturn, nor was said Minturn at any time in any way, shape or manner connected with or associated with the partnership of Marks, Laser & Co., other than as set forth herein; that said Minturn was an independent broker engaged in business for himself and was so licensed to engage in the brokerage business for and on behalf of himself by the Secretary of State of the State of Illinois, and maintained his own separate office and place of business; that said Minturn transacted and engaged in said business of broker and was a member of the Chicago Curb Exchange; that the partnership of Marks, Laser & Co. at no time transacted any business with or for the account of plaintiff J. Lester Mee; that said Mee was a customer of the defendant Minturn and all transactions referred to in the complaint and in the affidavits filed in support of the summary judgment were had between plaintiff and Minturn; that said Minturn was a correspondent broker of the partnership; that Minturn had no bookkeeping facilities for maintaining customers’ accounts or records of customers ’ accounts and as a convenience to said Minturn, and in accordance with the common custom and usage in existence in the brokerage business for many years last past, said partnership maintained a record of the bookkeeping transactions of the customers of said Minturn; that said maintenance of said records for said customers of defendant Minturn was done by the partnership merely as a convenience to said Minturn and that said partnership received no compensation or consideration therefor; that said Minturn further had no facilities for handling large amounts of cash or securities deposited by his customers and as a further convenience to said Minturn, said partnership agreed to and did accept moneys and securities deposited by customers of said Minturn, which was further done as aforestated, merely as a convenience to said Minturn without the' payment of any compensation or consideration therefor to said partnership; that the partnership had no further connection with any of the transactions referred to in the complaint and in the affidavits for summary judgment, other than as set forth herein. ’ ’

This affidavit denies the allegations of paragraph 2 of the affidavit of Lester E. Mee in so far as the same alleges that Lester E. Mee gave orders to the partnership to buy and sell commodities and stocks for the account of plaintiff, and on the contrary alleges that if any orders were given, Lester E. Mee and J. Lester Mee gave the orders to defendant Minturn and not to Marks, Laser & Co., or anyone associated or identified with them. This affidavit calls attention to the fact that exhibit 2 filed by plaintiff states that the partnership is responsible only for contracts placed with and confirmed by the partnership, and that it is specifically there provided that correspondent brokers are the agents of their customers and not the agents of the partnership. The affidavit also states that the stock received by plaintiff was never the stock of the partnership other than in the normal course of transfer, in accordance with the custom and usage existing for many, years in brokerage business; that the shares of stock prior to the time they were delivered to plaintiff belonged to General Carpet Company and were transferred from the name of that company to the name of the partnership and then to the name of plaintiff at the direction and request of the defendant Minturn ; that the partnership received no consideration of any kind whatsoever for any of the transactions referred to in the complaint or in the motion for summary judgment and affidavits in support thereof; that any commission in connection therewith was received by defendant Minturn; that the entire transaction referred to in the complaint and affidavits was a transaction between plaintiff and defendant Minturn, and that the partnership had no further connection with the transaction other than as stated therein.

The trial judge stated the reason for his finding and judgment, saying correctly, we think, that the affidavit of the defendant partners does not deny the essential thing stated in plaintiff’s claim, namely, that Minturn in fact held himself ont as the agent of defendants, and that they by their acts ratified what Minturn did with respect to the transaction with plaintiff. As the court pointed out, the affidavits show much more than a mere isolated act. The whole transaction took place in defendants’ place of business in Chicago, Illinois. Defendants took the money. Defendants’ books show the transaction as made was their own. The facts present precisely the kind of case to which the statute providing for summary judgments was intended to apply. The object of a proceeding of this nature is to determine whether there is an issue of fact for the jury. The distinction between affidavits of defense required under former Practice Acts and those necessary upon motions of this kind has been pointed out in People for use of Dyer v. Samculws, 284 Ill. App. 463, where we quoted with approval the language of Professor McCaskill: “There is a striking difference between the affidavits required by this rule and the affidavits which were employed under those sections of former practice acts which established a modified form of summary judgment. The affidavits contemplated in this rule are designed to inform the Court of the existence or non-existence of an issue worthy of trial, whereas the affidavits formerly employed were designed primarily to advise a party of the nature of his adversary’s claim of defense.”

This also, it is believed, represents the views of the Supreme Court expressed in People ex rel. Ames v. Marx, 370 Ill. 264, and by this court in Chicago Title & Trust Co. v. Cohen, 284 Ill. App. 181; Wainscott v. Penikoff, 287 Ill. App. 78, and is in harmony with the practice in other states which have adopted similar rules, Dibble v. Jones, 130 Misc. 359, 223 N. Y. S. 785.

For the reasons indicated the judgment of the trial court will be affirmed.

Judgment affirmed.

O’Connor and McSurely, JJ., concur.