author: Mr. Justice Shurtleff

text:
    Emma S. Velde et al., trading as Velde Lumber Company, Defendants in Error, v. John William Schrock et al., Plaintiffs in Error.
    Gen. No. 8,241.

      Opinion filed January 24, 1929.
    Rehearing denied April 4, 1929.
    Claude TJ. Stone and H. A. Ballenger, for plaintiffs in error; W. W. Whitman, of counsel.
    Wm. J. Reardon, for defendants in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This suit was instituted by defendants in error to foreclose a mechanic’s lien upon property described in the bill and to recover $1,415.35, being the balance claimed to be due from plaintiff in error John William Schrock to the defendants in error. The bill is based upon a verified claim for lien for materials furnished, setting out the nature of the contract, the items and the dates of delivery of the same from November 20, 1922, the date of the first delivery,' to August 11, 1923, when the last items were furnished and delivered and the contract completed. This verified claim for lien was filed with the clerk of the circuit court of Tazewell county, where the premises were situated, June 14, 1924, and the petition to foreclose was presented to the circuit court of said county on June 6, 1925. To the petition, plaintiffs in error John William, Bina and Frances Schrock 'filed a general and special demurrer and four separate pleas. Plaintiff in error John William Schrock was the owner of the premises (improved) at the time of making said contract, the furnishing of the material and until December 30, 1925.

The first plea charges that H. L. Huffington, under and by virtue of a contract with plaintiffs in error Bina Schrock and Frances Schrock, on the 16th day of April, 1925, being then the owners of said premises, entered into the actual, open, visible, exclusive and notorious possession of said premises, and from thence hitherto said Huffington has had and still has such adverse'possession of said lands.

The second plea avers that on December 30, 1925, by a sufficient warranty deed, plaintiff in error John W. Schrock sold and conveyed the premises in question to the said plaintiffs in error Bina and Frances Schrock, and that they thereupon became the sole, absolute, exclusive and only owners of said premises, subject only to the interest of the Pekin Loan and Homestead Association as mortgagee and of the said H. L. Huffington under said contract, and that from thence hitherto neither plaintiff in error John W. Schrock nor any person other than the said Bina and Frances Schrock, Pekin Loan and Homestead Association and H. L. Huffington has had any right, title or interest in or to said premises, etc.

The third plea sets out a portion of the verification to the claim for lien, sworn to by one of the defendants in error, as follows: ‘ ‘ That the first materials were furnished and delivered on November 20, 1922, and the last on the 25th day of May, 1923.” The plea then refers to said claim for mechanic’s lien for certainty and attaches a copy as exhibit A, and declares the same to be a part of the plea. The plea further alleges that said claim for a mechanic’s lien was the only claim at any time filed against the premises described in the bill and the plea avers that the claim for mechanic’s lien fails to show or state that any building materials were furnished or the alleged contract completed or extra or additional work done after May 25, 1923, or within two years next preceding the commencement of this suit and the plea claims the benefit of the statute of limitations in that respect. Exhibit A, attached to the plea, does show items of material furnished in the months of May, June, and August, 1923. In the copy of the invoice, bills of items, exhibit A, consisting of several pages attached to the claim for lien, the last two pages appear to be transposed and do not follow in their regular order, the last item of charge on the final page being dated “May 25th,” while the June and August items appear on the preceding page. By this error both parties apparently were misled in this matter.

The fourth plea sets out a proceeding in bankruptcy, plaintiff in error John W. Schrock having filed his petition in the United States District Court at Peoria, to which proceeding defendants in error were made parties and summoned, and in which it is charged in the plea there was a finding and judgment that this claim for a lien was fraudulent and was barred by the statute of limitations.

Plaintiffs in error amended their pleas, by leave of court, by adding thereto that by reason of the conveyanee "by plaintiff in error John William Schrock to plaintiffs in error Bina and Frances Schrock, they became and since have been subsequent purchasers of all of said premises; that all and every part of said building materials was furnished on or before May 8, 1923, and that the claim and debt therefor became due on and before May 8, 1923, and for the reason that no claim for lien was filed within four months after the completion of the work and no suit commenced before June 14, 1924, more than four months after the completion of any contract, and by reason of plaintiffs in error being purchasers, said claim for mechanic’s lien is wholly null and void as to the interests of plaintiffs in error Bina and Frances Schrock. The pleas are to the whole bill and plaintiffs in error prayed to be dismissed and-for costs. Replication was filed to the pleas. The defendant Samuel Wagler presented a cross-petition in his behalf, which upon the pleadings was dismissed and Wagler discharged from the case.

Thereupon, on November 23, 1925, in an order of court reciting the pleadings and the issues, the court referred the cause to the master in chancery “to look into the bill and the said pleas and the replication filed thereto in said cause and the bill in equity in said plea mentioned, and ascertain whether or not all or any of said pleas are true in substance and in fact and to report and certify your findings, together with the proof to the court with all convenient speed.”

The proofs were submitted before the master on December 12, 1925, and January 4, 1926. On January 27, 1926, the master gave notice to all parties that he had prepared a report and had fixed upon the 2nd day of February, 1926, at 10 o ’clock a. m. for the filing and consideration of objections, if any, to said report.

It further appears from the record that on the 30th day of January, 1926, in what is recited as an order of court, plaintiffs in error appeared and filed their motion for leave to withdraw, without prejudice, their demurrer and pleas heretofore filed herein, and to file their answer to the complainants’ bill of complaint instanter. There was no order made upon said motion and on the same day court adjourned to court in course. The master’s report was considered upon February 2, 1926, at which time and place all parties attended or were represented by solicitors. No objections of any kind were made to said report, but plaintiffs in error did appear and present a written motion to the master to suspend further proceedings until the court could act upon a motion to amend the pleadings, which motion had been filed with the clerk and was presented to the master. The motion was overruled by the master and a verbal motion was made by plaintiffs in error for leave to offer additional proofs relative to the purchase of the premises in question by plaintiffs in error Bina and Frances Schrock. The latter motion, upon consideration, was overruled. The master’s report was filed and later, without any exceptions made to it, was submitted to the court and a decree entered. On February 13,1926, and before said report was acted upon, plaintiffs in error appeared and again submitted their motion, supported by affidavits, and asked leave to file instanter affidavits in support of their motion made January 30, 1926, and the affidavits of O. W. Hall, Bina Schrock and H. A. Ballenger were submitted and filed with the clerk. The whole matter appears to have come before the court on April 24,1926, upon the motion of defendants in error to strike from the files the motion of plaintiffs in error for leave to amend the pleadings, and it is recited: “The court now having heard the said motion and the arguments of counsel and on due consideration, being fully advised in the premises, sustains said motion.” Thereupon the master’s report was approved and a decree entered dismissing the Pekin Loan and Homestead Association out of the case. A default was entered against the defendant H. L. Huffington and a foreclosure of the premises ordered. No liability was adjudged against any of the plaintiffs in error personally.

The plaintiffs in error filed objections and exceptions to the decree, prayed and were allowed an appeal, and afterwards on April 29, 1926, plaintiffs in error filed with the clerk their motion, supported by affidavits, to vacate and set aside the order entered on April 24, 1926, sustaining defendants’ motion to strike, etc., and granting a decree approving the master’s report and findings. The motion and affidavits are set out in what purports to be the record, certified by the clerk, and of which the affidavits cover nearly 50 pages. This motion with a form answer, for which leave had never been given to file, appears never to have been brought to the attention of the court, and no action appearing to have been requested or taken thereon, the court on the following day, April 30, 1926, adjourned to court in course. At the later terms further action was attempted upon this motion, new and additional motions filed and further affidavits filed with the clerk which have been incorporated in the record.

It does appear that .on. August 17, 1927, an order was entered that all papers and all motions filed “by the defendants or any one of them herein, since the entering of said final order be, and the same are hereby stricken and the said cause is stricken from the docket.” In passing it may be noted that some of the later motions and affidavits went so far afield as to attempt to bring into this record the full proceedings between plaintiff in error John William Shrock and a former wife, including their divorce and the support of children, in an attempt to trace a document that was not known about at the time of the hearing of this case, and the abstract of title to lands owned by the Triplex Washing Machine Company, situated at a considerable distance from the lands in question in Pekin, are set out in this record- as a fruitful source of study.

Before taking up the merits of the case and the decree, we are met at the outset with a motion by defendants in error, taken with the case, to strike from the record and the transcript thereof the following motions, exhibits and affidavits, namely:

First: Motion by plaintiffs in error of January 30, 1926, for leave to withdraw pleas without prejudice and to file answer.

Second: Motion by plaintiffs in error of February 13, 1926, for leave to file instanter affidavits of C. W. Hail, Bina Schrock and H. A. Ballenger in support of former motion, together with affidavits.

Third: Motion of April 29, 1926, by plaintiffs in error to vacate decree sustaining defendants’ motion to strike, and approving the master’s report,' etc., together with the affidavits presented therewith.

Fourth: And the motion to strike _ includes all the motions, affidavits and proceedings attempted to be taken in said cause after the adjournment of the term following the decree on April 30, 1926. The basis of the motion is that the record of none of said motions, affidavits or proceedings has been preserved by a certificate of evidence and are not properly before the court, while plaintiffs in error urge that in chancery all motions and affidavits which are connected with or support a motion and proceedings are incorporated in and form a part of the record without a certificate of evidence. It is doubtful if counsel on either side have stated the rule exactly.

In Young v. Jameson, 307 Ill. 71, 75, the court held:

“All written motions in chancery are parts of the record without being preserved or incorporated in the certificate of evidence. In law cases the rule is, in substance, that such motions, to become a part of the record, must be incorporated in a bill of exceptions signed by the judge; but a bill of exceptions has no appropriate place in a suit in chancery unless it be to preserve oral evidence introduced on the hearing.” (Ferris v. McClure, 40 Ill. 99.) A stipulation becomes a part of the record (Dilworth v. Curts, 139 Ill. 508, 519), where it is held:
“But it is said this stipulation is no part of the record. We do not concur in this view. . The stipulation, after having been executed, was filed with the bill, answer and replication as one of the papers which constituted the files in the cause. The bill, answer, replication, and all exhibits to the bill and answer, and depositions taken in the cause, and other papers filed in the cause as a part thereof, became a part of the record without being preserved by certificate of evidence. (Bressler et al. v. McCune et al., 56 Ill. 481; Stevison v. Earnest, 80 id. 513, which lay down the correct rule on this subject.) It is there said: ‘Our practice with regard to the maldng of records of judgments is different from that which obtained at common law. The papers of a case, when filed, under our statute become a part of the record as fully as if copied into the record book of the court. (Harding v. Larkin, 41 Ill. 423.) And transcripts of the record are made by copying the files and the orders of court as entered of record by the clerk. Here the stipulation was filed as one of the papers in the cause. As such it had its office to perform in like manner as did the bill, answer or one of the exhibits, and as one of the files in the cause no certificate of evidence was required to make it a part of the record. ’ ”

In Bressler v. McCune, 56 Ill. 475, 481, the rule is laid down:

“From an inspection of the record we can not say that this cause was heard at the final hearing simply on bill, answer and replication, without evidence. If depositions are regularly taken in a chancery cause and filed therein, they will he taken and considered as a part of the record without any certificate of the judge for that purpose, and the court will presume that such depositions were read at the final hearing of the cause, although there is no recital in the final decree to that effect. The same rule prevails as to exhibits made a part of the bill and regularly filed therewith, and the court in like manner will presume that they were considered on the hearing. Ex parte affidavits produced on a motion to dissolve an injunction can not be read as evidence on the final hearing, except by consent of the parties, which should appear from the certificate of the judge who heard the cause. In this instance the evidence heard on the motion to dissolve the injunction was made a part of the record by the certificate of the judge.”

In Yott v. Yott, 257 Ill. 419, 421, the court said:

“There is no distinction between a bill of exceptions and a certificate of evidence, both of which are designed to preserve and make a part of the record proceedings not otherwise of record, and the certificate of evidence will prevail over the recitals by the clerk in the record. (Hirth v. Lynch, 96 Ill. 409; McChesney v. People, 174 id. 46; Catholic Order of Foresters v. Fits, 181 id. 206; Indiana, Decatur and Western Railway Co. v. Hendrian, 190 id. 501.) That which is proper matter for a bill of exceptions or certificate of evidence and which is not contained in it is to be taken as not having occurred.”

In DuQuoin Water-Works Co. v. Parks, 207 Ill. 46, 49, the court held in a chancery case that the affidavits used in connection with a motion for a continuance did not form a part of the record, unless made such by certificate, and in Lange v. Heyer, 195 Ill. 420, 422, on a motion to vacate a decree, the court adhered to the same rule.

In Van Pelt v. Dunford, 58 Ill. 145, 146, the court held:

“The appellant seeks a reversal of the decree in this cause, on two grounds. First, that the court ought to have awarded a new hearing on the affidavits filed in aid of a motion for that purpose. The affidavits to which reference is made form no part of the record, and can not be considered by the court. The appellant, to obtain the benefit of the affidavits in this court, should have had the same made a part of the record by the certificate of the judge who heard the cause in the circuit court. In the absence of such certificate, we will not presume, from the mere fact that the affidavits were found among the files of the cause, that the same were read to the court. There is no certificate of the judge making the affidavits we are asked to consider, any part of the record, and for that reason we must decline to look into them. That which purports in the record to be a certificate of the evidence, is not signed by the judge who heard the cause on the circuit.”

And again, recently, the court confirmed the rule in Williams v. De Roo, 316 Ill. 23, 26, holding:

“The first error assigned and" argued is that the chancellor erred in denying the application for a change of venue. While the motion for a change of venue becomes a part of the record in a chancery case when it is filed, the affidavit supporting the motion, which the statute requires shall be attached to it, does not become a part of the record unless preserved by a certificate of evidence. (Bellinger v. Barnes, 223 Ill. 121; VanPelt v. Dunford, 58 id. 145.) The fact that the affidavit in support of the motion has been copied into the record by the clerk does not bring it before us for our consideration. (DuQuoin Waterworks Co. v. Parks, 207 Ill. 46; Lange v. Heyer, 195 id. 420.) The question is not presented for review.”

Altogether it seems plain that bills, answers, replication and exhibits to the same, all motions, orders, stipulations, depositions and reports of masters, with proofs attached, constitute parts of the record. The rule may cover other matters. But where extraneous matters are brought in by affidavit in support of motions or oral proofs submitted to the court, they do not form part of the record unless made a part by a certificate of evidence. Under this rule the motions made by plaintiffs in error on January 30 and February 13, 1926, are a part of the record and should not be stricken. The motion of April 29, 1926, and motions made after the adjournment of the term are governed by a different rule. All affidavits submitted by plaintiffs in error and pleadings for which no leave was given to file in support of motions not contained in the master’s report should be stricken. As to the motion made on April 29, 1925, and which, was not called to the attention of the court and upon which the court had no opportunity to pass, this motion did not have the effect to carry the cause over the term and should be stricken from the record. A motion merely filed with the clerk and not brought to the attention of the court does not constitute a motion. (Harris v. Chicago House Wrecking Co., 314 Ill. 500, 505; City of Marengo v. Eichler, 245 Ill. 47, 49; City of Decatur v. Barteau, 260 Ill. 612, 615; Sinclair v. Sinclair, 224 Ill. App. 130, 140.)

It is elementary that the court can have or take no jurisdiction over its decree after the adjournment of the term, and all motions in this case made1 after the adjournment of the term become mere attempts to correct error by the motion in substitute for the writ of error coram nobis, which does not apply to chancery practice. (Tosetti Brewing Co. v. Koehler, 200 Ill. 369, 373; Tobias v. Tobias, 193 Ill. App. 95, 98; Bill Board, Pub. Co. v. McCarahan, 180 Ill. App. 525, 541; Cigler v. Keinath, 167 Ill. App. 65, 68.)

Was there error in the decree? There were no objections filed to the master’s report before the master or exceptions taken before the chancellor. In such cases it has been held that if the evidence before the master is incompetent or insufficient to establish a claim or fact against a defendant, he must file objections to the master’s report and, if overruled, renew the same in the trial court, otherwise he cannot afterward call in question the sufficiency of the evidence. The master’s report, where no exceptions are taken, is conclusive on the parties. (Cheltenham Improvement Co. v. Whitehead, 128 Ill. 279, 284; Whalen v. Stephens, 193 Ill. 121, 132.) The fact that there was a clerical error in the statement of claim for lien cannot defeat the lien when the same exhibit, in the items, gave the correct figures and showed the statement to be a clerical error. (Section 7, ch. 82, Rev. St., Cahill’s St. ch. 82, ¶ 7; City of Chicago v. Anglum, 104 Ill. App. 188.) There was no testimony that plaintiffs in error Bina and Frances Schrock were innocent purchasers of the premises, or that they paid any consideration for the land. It was incumbent upon them to show this. Brown v. Welch, 18 Ill. 343; Lowden v. Wilson, 233 Ill. 340, McGuire v. Gilbert, 270 Ill. 160, 169. In addition, the schedules of John William Schrock in bankruptcy showed that, contemplating his insolvency, he conveyed the premises to his sisters to release a portion of his former indebtedness to them. Plaintiffs in error paid no present consideration for the premises. This covers’ all defenses plaintiffs in error could claim under the first and second plea. The third plea is based upon a clerical error by which plaintiffs in error were misled and on account of which they desired to withdraw their pleas. The fourth plea, that the merits of the claim had been passed upon in the United States Court in bankruptcy, was not proven. The plea was not in form and in any event the bankrupt did not list or schedule the lands in question, which is the only subject matter of this suit, and inasmuch as the decree in this cause finds no personal liability, the bankruptcy court had no jurisdiction over any of the matters that are litigated in this cause. Only one other error could be claimed, and that is that the court abused its discretion and erred in not permitting plaintiffs in error to withdraw their pleas and file an answer, in overruling the motion of plaintiffs in error of January 30 and February 13, 1926. The cause had been heard by the master and a report drawn. The casé had been decided. No showing was made upon which a court could exercise its discretion, according to this record, unless such orders are granted as of course. If it should be conceded that all the charges attempted to be shown by plaintiffs in error in this record were true, it would only show that plaintiffs in error had misconceived their remedy, which would fully account for the court’s rulings and conduct. Plaintiff in error John William Schrock has no interest in this cause.

We do not hold that the circuit court of Tazewell county abused its discretion in denying said motion under the peculiar facts in this case. Finding no error in the record, the decree of the circuit court of Tazewell county is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    Harold Cusack, Appellant, v. Thomas Cusack, Jr. et al., Appellees.
    Gen. No. 33,129.

      Opinion filed May 29, 1929.
    Kelly & Murphy, for appellant; John E. Kelly and Frank F. Trunk, of counsel.
    Mayer, Meyer, Austrian & Platt, for certain appellees; Abraham Meyer and Frederic Burnham, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a decree of a chancellor of the superior court of Cook county dismissing complainant’s bill for want of equity.

On December 27, 1926, complainant, Harold Cusack, filed his bill against Thomas Cusack, Jr., and Charles E. Cusack, individually and as executors of the will of Thomas Cusack, Sr., deceased, Francis J. Cusack, Anna M. Cusack Johnson, and Jane Evelyn Cusack, being the five surviving children of Thomas Cusack, deceased, and the Illinois Merchants Trust Company, individually .and as trustee under the Cusack will.

Complainant alleges that he is 33 years old and that the five Cusack defendants are all adults; that complainant when he was 4 years old was taken into the home of Thomas Cusack, deceased, and lived with him as a member of his family from 1898 to 1916; that in 1913 he entered the employ of the Thomas Cusack Company, in which Thomas Cusack, deceased, was heavily interested as a stockholder, and that he finally became a director and vice president of the company and was the owner of 3,802.71 shares of the capital stock of said company; that on September 19,1924, the market value of said stock was $380,277; that Cusack’s five children also owned stock in the company, Thomas Cusack, Jr., being the owner of 3,670 shares; Charles E. Cusack 3,500 shares; Francis J. Cusack 3,500 shares; Anna M. Cusack Johnson 4,500 shares and Jane Evelyn Cusack 3,525 shares; that Thomas Cusack, the father of said children, was the owner of 10,995.13 shares; that the aggregate value of all of said stock was on the last-mentioned date $3,349,277; that on said September 19, 1924, complainant and the five children executed and delivered to said deceased the following document:

“We and each of us do hereby authorize Thomas Cusack, Sr., to act for us in our behalf in connection with the sale of certain stock of the Thomas Cusack Company, now standing in our names and of which we are the owners, hereby ratifying and confirming all that he may do by virtue hereof.
“In Witness Whereof we have hereunto set our hands and seals this 19th day of September, 1924.”

That acting under such authority. Thomas Cusack, Sr.-, sold all the stock of complainant and his five children for $100 per share; that a check was made by the purchasers of the stock to the order of complainant for $380,277; to Thomas Cusack, Jr., for $367,000; to Charles E. Cusack for $350,000; to Francis J. Cusack for $350,000; to Anna M. Cusack Johnson for $450,000, and to Jane Evelyn Cusack for $352,500; and to the father of the five Cusacks for $1,099,500; that about September 20, 1924, complainant and the five children and their father met at the Illinois • Merchants Trust Company with Charles J. O ’Mara and James M. Loughlin, who represented Thomas Cusack, Sr., and informed complainant that said Thomas Cusack, Sr., desired all of the checks representing the purchase price of the stock belonging to complainant and the five children indorsed over to an account which was to be opened in the name of Thomas Cusack, trustee, and at the same time informed complainant that his shares would be accounted for at a later date, and then requested complainant to indorse and deliver to Thomas Cusack, Sr., his check for $380,277, and that believing that Thomas Cusack would account to complainant for the proceeds of the check, he indorsed .and delivered the same to said agents of said Thomas Cusack, Sr.; that thereafter and on the 29th day of September, 1924, complainant met Thomas Cusack, Sr., who attempted to repudiate his agreement and understanding with complainant With reference to his trusteeship of the funds belonging to complainant, and then and there claimed the proceeds of complainant’s check belonged to him, and that he intended to hold the same to his own use; subsequently said Thomas Cusack, Sr., gave to complainant the sum of $100,000, and after further negotiations said Thomas Cusack and complainant met in the office of said Thomas Cusack, Sr., and there were also present Joseph Connell and Willett Corn-well, attorneys for Thomas Cusack, Sr.; that certain documents were presented by the attorneys for Cusack, Sr., one of which was in the following words:

“In consideration of the sum of $380,277.00, paid by Thomas Cusack, Sr., to Harold Cusack, Harold Cusack hereby remises, releases and forever discharges said Thomas Cusack, Sr., individually and as Trustee, from any and all claims which he now has, ever had, or may at any time hereafter have, arising from or growing out of the shares of stock of the Thomas Cusack Company of New Jersey by Harold Cusack in which transaction said Thomas Cusack, Sr., acted as Agent for said Harold Cusack.
“Harold Cusack also hereby remises, releases and forever discharges said Thomas Cusack, Sr., individually and as Trustee from any and all claims of any nature whatsoever which said Harold Cusack now has or ever had, or may at any time hereafter have against the said Thomas Cusack, Sr., for any cause or causes whatsoever.
..................., (SEAL)
“Dated at Chicago, Illinois this 23rd day of December, 1924.”

and at the same time presented to complainant a check for $40,000 payable to his order, and five checks in the sum of $47,055.40 payable to the order of complainant, which checks aggregated $275,277, and that said Cusack, Sr., requested complainant to indorse five of said checks for $47,055.40 each, making the same payable to his, said Thomas Cusack’s, five children; that complainant demurred, but after conferring with all the parties present and being assured that the amount due him would be paid by Thomas Cusack, trustee, he executed the release, indorsed the five checks for $47,055.40 each and handed the checks to Thomas Cusack,- Sr.; that said five checks were deposited by Thomas Cusack, Sr., in the Illinois Merchants Trust Company in the account of Thomas Cusack, Sr., trustee, and at the same time Thomas Cusack, Sr., paid to complainant the amount of the income tax due to the federal government for the year 1924, amounting to $8,455.70; Thomas Cusack, Sr., died November 10, 1926; his will was admitted to probate on December 17, 1926, and Thomas Cusack, Jr., and Charles E. Cusack were appointed executors and are now acting as such executors; that in his will he made provision for four trusts amounting to $200,000 and the balance of his estate was divided share and share alike among his five children; that said will contained the following clause:

“Sixth: I direct that my adopted son, Harold Cusack, shall receive no part of my estate under this Will, as I have already made what I consider ample provision for him.”

That said five children of Thomas Cusack, deceased, now faslely state to complainant that the execution and indorsement of the five checks for $47,055.40 each and the delivery thereof constituted a valid legal gift by complainant to each of said five defendants, and they refuse to account for the same and refuse to make any accounting touching the amount due to complainant from said trust fund; that they all knew that the indorsement and delivery of said five checks were made and delivered without any consideration whatsoever, and that said checks were delivered to Thomas Cusack, Sr., at his special instance , and request, and that the indorsement and delivery of said checks were brought about as a result of a conspiracy on the part of Thomas Cusack, Sr., and his aforesaid five children to cheat and defraud complainant.

Complainant prayed that an account be taken concerning all of the transactions and dealings between the parties to the bill and that the rights of the parties be ascertained and the defendants be decreed to pay complainant whatever shall appear to be due him on such accounting, complainant offering to repay defendants what, if anything, may be found due them from complainant; that the release hereinabove set forth be delivered up for cancellation; that the defendants Thomas Cusack, Jr., and Charles E. Cusack, individually and as executors of the will of Thomas Cusack, Sr., deceased, Francis J. Cusack, Anna M. Cusack Johnson, Jane Evelyn Cusack, and Illinois Merchants Trust Company, trustee under the Cusack will, or one or more of them, be decreed to pay complainant the full amount of the proceeds of the check for $380,277, received by complainant for the sale of his stock in the Thomas Cusack Company, and indorsed and delivered to Thomas Cusack, trustee, less any amount paid to complainant, by said Thomas Cusack in his lifetime, and that the amount so found due to complainant from such an accounting may be decreed to be a first lien on the property and effects of said Thomas Cusack, deceased, in the hands of the executors or trustee of his estate, and for other and further relief, etc.

The defendants, the five children of Thomas Cusack, Sr., deceased, at first interposed a general demurrer, which being overruled, they filed their answer in which they first alleged that “they do not admit any of the allegations in said bill of complaint contained, except as hereinafter specifically admitted, and require strict proof of each and every allegation in said bill of complaint not so specifically admitted.” And the defendants then proceed categorically to deny all of the material averments of the bill. On April 28,1927, complainant filed his replication to said answer.

The defendant, Illinois Merchants Trust Company, filed its answer (not abstracted) in which inter alia it admitted its corporate capacity and that it is informed that it had been named to act as trustee under the will of Thomas Cusack, Sr., deceased, but averred that it had not accepted said trusteeship and had not received any part of the property or estate of decedent under his will, nor has it intermeddled in any manner whatsoever as such trustee with the property or estate of decedent. It admits that there was maintained with it by Thomas Cusack a “checking account in the name of Thomas Cusack, Sr., Trustee,” and that there was at one time, to wit, September 27, 1924, a certain check deposited to the credit thereof in the sum of $380,277, and that there was on, to wit, January 12, 1925, five certain checks each in the sum of $47,055.40 deposited to the credit of said account, but further says that it has no knowledge either from its records or otherwise whether any of said checks ivere made payable to the order of complainant or bore his indorsements, or were the checks mentioned in the bill as belonging to him; and further denies that there now is or was on December 29, 1926, the day of the service of the summons upon it in this cause, “any sum of money whatsoever on deposit to the credit of said checking account of said Thomas Cusack, Trustee, or any sum of money whatsoever on deposit with this answering defendant under the control of Thomas Cusack, Jr. and Charles E. Cusack, as executors of the last will and testament of Thomas Cusack, deceased.”

On May 12, 1928, the day of the entry of the decree, the defendants by leave of court filed an amendment to their answer, the replication as filed standing to the answer as thus amended, in which they make further denials of some of the material averments of the bill.

The complainant, Harold Cusack, was a nephew of Thomas Cusack, Sr., and his adopted son. At 'the tender age of 4 years he became a member of Thomas Cusack’s family and so remained for many years. In 1913 he entered into the employment of the Thomas Cusack Company, of which Thomas Cusack, Sr., was president, the largest stockholder and the controlling spirit in all its affairs. Harold Cusack started his work with the company as an apprentice. In 1915 he was six months in the manager’s office. From there he went to the purchasing department for the succeeding year, then became operating superintendent of the Chicago branch of the company, and afterwards manager of the same, which position he retained until 1924 and was also vice president and a director of the company. It is in evidence that complainant received at times in excess of $40,000 a year in salary and bonus for his services. He was evidently a very useful servant of the company. The record does not disclose that any of the five children of Cusack, Sr., were ever in the employ of the company.

From the evidence it conclusively appears that complainant was at all times from his infancy until the sale of the stock of the Thomas Cusack' Company and thereafter entirely dominated and controlled by Thomas Cusack, Sr.

It also appears that Cusack, Sr., was a dominant and a domineering character and would not brook opposition; that he was a man of great austerity of temper and disposition, and that when aroused by opposition, in any discussion, he gave exhibitions of his temper, which, to say the least, were unpleasant and disquieting to his opponents, and that many times complainant yielded to Cusack, Sr., to avoid arousing his temper and hostility, and particularly in the discussion of the matters in controversy between complainant and his foster father, concerning complainant’s stock holdings, who at such times was in bad physical health; that Cusack, Sr., stood in the relationship of a parent to complainant since he was 4 years old and until his majority, and thereafter in the matter of complainant’s "stock holdings in the Cusack Company at and after their sale, as a self-imposed trustee, are facts which are not seriously in controversy.

The following facts found in the record are not in dispute and they constitute, in themselves, facts sufficient to control, as a matter of law, the rights of the parties to this litigation.

, That at the time of the sale of all the stock of the ¡Thomas Cusack Company, complainant, as shown by ¡the books of the company, was the owner of 3,802.77 pf its shares; that complainant and Cusack, Sr’s., five children on the 19th day of September, 1924, gave a power of attorney for Cusack, Sr., to act as their attorney in fact in the sale of the stock which they owned in the Cusack Company. This reads as follows:

“We and each of us hereby authorize Thomas Cusack, Sr., to act for us in our behalf in connection with the sale of certain stock of the Thomas Cusack Company, now standing in our names and of which we are the owners, hereby ratifying and confirming all that he may do by virtue hereof.”

In pursuance of the above-recited power of attorney, Cusack, Sr., sold to Blair & Company in New York City the stock of complainant and his five children for ja, sum aggregating $2,249,777. Six checks were made and delivered to each of them for the amounts for which their respective shares of stock were sold. The checks were made payable to the order of George L. Johnson, who indorsed the same payable to each one of the six, complainant’s check being for $380,277; all of these checks, including complainant’s, were indorsed to the order of Thomas Cusack, Sr., trustee, at his request and all of them deposited in the Illinois Merchants Trust Company on September 27, 1924, to the account of ‘‘Thomas Cusack, Sr., Trustee” on his insistence. There were signature cards signed by complainant and the five children of Thomas Cusack, Sr., to the Illinois Merchants Trust Company with the notation “One signature only required” and also “voluntary mutual agreement between trustee and beneficiaries.” On a new card dated June 26, 1925, it is written “one signature and one counter signature required.”

The next financial bank transaction between Trustee Cusack and complainant and the trustee’s five children was the following: Five checks dated December 23, 1924, drawn by Thomas Cusack, trustee, upon the Illinois Merchants Trust Company, payable to the order of Harold Cusack for the sum of $47,055.40 each. These checks were respectively indorsed payable to' the order of each of the five children of Thomas Cusack, Sr., the trustee, and by each of the children, Charles E. Cusack, Thomas Cusack, Jr., Anna M. Cusack, Jane Evelyn Cusack and Francis J. Cusack, further indorsed over to Thomas Cusack, Sr., trustee, and then indorsed “Pay Illinois Merchants Trust Company, Chicago, Illinois, or order, Thomas Cusack, Trustee”; and these five checks were by Thomas Cusack, trustee, deposited to the credit of his trustee account in the Illinois Merchants Trust Company. None of these checks were retained or converted to their own use by either of the five children of said Thomas Cusack, Sr., trustee, but went back into the trustee account in the Illinois Merchants Trust Company, on which they were drawn, so that when the five checks were deposited by Trustee Cusack into the trust account, the trust account was in the same condition as to the amount to its credit as it was before the five checks were drawn by him to the order of Harold Cusack. While there were other items deposited at the same time by Trustee Cusack in his trustee account, which together with the five checks above mentioned made a total deposit of $312,851.67, we are not concerned in this proceeding with any of the items except the five checks for $47,055.40 each, payable to the order of Harold Cusack, and by him indorsed and by the indorsees again indorsed payable to the order of Thomas Cusack, Sr., trustee, and by him deposited as above detailed to the trustee account.

The record shows beyond controversy that Cusack, Sr., without the consent or request of Harold Cusack, was the self-appointed trustee, and that he imposed himself upon Harold Cusack as such trustee by force of his personality and influence over him and without regard or reference to the rights of Harold Cusack in the premises. It cannot well be controverted that at the time the check for $380,277, the purchase price of complainant’s stock holdings, was indorsed over to him by George L. Johnson, the payee, he had the right to retain the check making such disposition of it as he might wish, and that at that time no power could have deprived him of the check and the money it represented as the purchase price of his stock in the Cusack Company.

The witness, George J. Scherer, who was vice president of the Cusack Company, testified to his acquaintance with complainant and Thomas Cusack, Sr., about June, 1924; that Thomas Cusack, Sr., told him that Harold was the owner of $300,000 or more of stock: that he stated that Harold was making money in the branch office of which he was manager, and that he earned it; that in January, 1925, in a conversation which the witness had with Thomas Cusack, Sr., he said inter alia that he had got his money and that he had given Harold $100,000; that he was not going to give him all his money because he (Harold) had the big head; that he was not going to let him take it and go into business, and if he lost it then he “ain’t going to be broke,” so that he would hold the balance of the money that he got until certain times when he knew Harold was going to take care of it; he said “you know Harold has the big head,” and the witness replied, “Yes, I know it”; but also stated that Harold was a big earner in the company and was entitled to all he had got. He further testified that Thomas Cusack, Sr., tried to dominate the entire directorship of the company, and that, unless he could, he became furious.

The check for $380,277 was handed to complainant, as he testified, by J. N. Loughlin, the secretary of the Cusack Company, who asked him to indorse it to Thomas Cusack, trustee, and when asked “what is the idea,” he replied “that’s the way the boss wants it” (referring to Thomas Cusack, Sr.). Harold asked Loughlin why he could not deposit the check in his own name and Loughlin said that there was nothing to worry about, that the check was only going to be indorsed over to a trust account, and thereupon he indorsed the check as requested by Loughlin, and handed it back to him. While this is denied by some of the Cusack defendants, yet complainant is corroborated in a measure by the testimony of Loughlin, the secretary of the company, who testified that he took out the checks and asked to have them indorsed to a trust fund, that the children all gathered around the table (this occurred in the bank) and that he called the names of the defendant parties as the checks were reached and turned over to them, and they were indorsed on the backs to the individuals, and he asked them to indorse them. When he reached a check with the name Thomas Cusack, he asked him to indorse the check and he did so.

‘ ‘ Q. Was that the way the entire operation went on ? A. All but Harold, who asked me — said—he wanted to know what the idea was; that he didn’t like it; so I told him that being a trustee fund the money would have to be accounted for and it was perfectly all right to indorse it.”

On being asked whether complainant spoke in a loud tone or a soft one, he said “As I recall, very low, and up at my side at the head of the table; I was at the north end of the table.”

According to this testimony the Cusack children and complainant were all together at the same table; and that complainant did protest at being asked to indorse the check to Cusack, Sr., cannot be gainsaid.

The only moneys paid from the trust fund by Cusack, trustee, to complainant were two sums, one of $40,000 on December 23,1924, and the further sum of $105,000. On this date complainant executed the release to Cusack, trustee, set out in a statement of the pleadings. The only other items of money relate to payments of supposed gift tax and income tax, but as there was no gift, of course, there was no tax. Those are matters which in due course will have to be adjusted hereafter with the internal revenue authorities.

It is not contended that either of the five Cusack children ever discussed with complainant the making of a gift to either of them, or that the checks for $47,055.40 each were gifts from complainant to these children, nor does it appear that at any time with anybody was the matter of a gift discussed by complainant or either of the five children; as it appears, the checks were simply given as matters of form. They had no force or effect except for a formal one, and that was abortive to pass the money evidenced by the checks to either of the children to whom complainant indorsed them as a gift, and there is no writing found in the record regarding the checks being gifts to the five children, to whom they were indorsed. It is held in Richardson v. Richardson, 148 Ill. 563, that in order that a gift inter vivos be valid, there must be an intention on the part of the giver and a delivery of the gift to or for the donee in pursuance of such intention, and also an acceptance. An intention on the part of the donor that the gift shall go into immediate and absolute effect is essential. The mere fact of a delivery and acceptance or permission to take, followed by possession, is not, of course, sufficient to establish a gift, as this may be equally consistent with a loan or sale. Rothwell v. Taylor, 303 Ill. 226; Bolton v. Bolton, 306 Ill. 473; Merchants’ Loan & Trust Co. v. Egan, 222 Ill. 494. In Telford v. Patton, 144 Ill. 611, the doctrine controlling gifts inter vivos is stated thus:

“It is essential to a donation ifiter vivos, that the gift be absolute and irrevocable, that the giver part with all present and future dominion over the property given, that the gift go into effect at once and not at some future time,' that there be a delivery of the thing given to the donee, that there be ‘such a change of possession as to put it out of the power of the giver to repossess himself of the thing given.’ (1 Parsons on Cont. marg. page 234; Dole v. Lincoln, 31 Me. 422; Robinson v. Ring, 72 Me. 140; Northrop v. Hale, 73 Me. 66; Grover v. Grover, 24 Pick. 261.) The delivery must be made with the intent to vest the title in the donee. (Jackson v. Twenty-third St. Ry. Co., 88 N. Y. 520.)”

None of the elements showing an intention to make a gift, or an acceptance of any such gift, is present in this case. Therefore we hold that the evidence utterly fails to establish a gift from complainant to the five Cusack children of $47,055.40 each, or of any other sum.

The opinion of the learned chancellor is embodied in the certificate of evidence and while legally it has no function to perform as a part of such certificate, yet counsel for the contending parties are not questioning the verities of that opinion. We will, therefore, adopt some of his findings regarding the question of a gift as they meet our approval, as conforming to our own opinion. The chancellor held, as we do, that:

“From the evidence of the defendants it does not appear clearly for what purpose they received the checks, whether as a gift or otherwise. There is no evidence in the record that they, as individuals, claim the money as being their property. There is, therefore, the only question whether they, as individual defendants, accepted the money as gifts. If the Court accepts the testimony of the defendants, there is a denial of the testimony of the complainant, that the money was turned over to them as testified to by him.
“It is unusual that there was no conversation with Harold Cusack by any of the defendants who received this money from this complainant about the reason for turning over this fund to the individual defendants.
“It is a fact that Harold Cusack, while not a brother of the defendants, but a nephew of Thomas Cusack, Sr., was a member of the family for a great number of years, and it must be admitted that there were many conversations with the complainant on other subjects; yet according to the evidence of these defendants nothing was said about this fund.
“The burden of proof is upon the defendants to show that the complainant made a gift without any qualification, and that the gifts were accepted. Exhibit 11, being one of the agreements for the payment of the income tax, signed by each of the individual defendants, is as follows:
“ ‘In consideration of the. sum of $47,055.40 this day given to Francis J. Cusack, by Harold Cusack, said Francis J. Cusack agrees to repay to Harold Cusack, the amount of the United States income tax for the year 1924, arising from or growing out of the sale by Harold Cusack of 471 shares of stock of the Thomas Cusack Company of New Jersey, which tax the said Harold Cusack will have' to pay to the United States Government in the first instance as a part of his income tax for the year, 1924.
Francis J. Cusack
“ ‘Dated at Chicago, Illinois, this 23rd day of December, 1924.’
“This agreement, together with an agreement with each of the other individual defendants, is in evidence, and is strongly stressed upon as proof of a gift to each of the defendants.
'“The complainant’s evidence tends to show that the papers were not prepared by him, but weré given to him at- the time of the execution of the release and the indorsement of the several checks for $47,055.40 each. He stated that he asked some of the defendants, so long as they had the money, to pay the income tax. He is, to some extent corroborated by Jane Evelyn Cusack. The money for the income tax which was paid by the complainant, was repaid to him from the account of Thomas Cusack, Trustee, on September 24, 1925, by checks- for $3,674.78 and December 17, 1925, for $4,971.06, These checks were indorsed by complainant and deposited in his bank.
“There is also in the record the evidence of Paul Sparks, a witness, for the defendants, to the effect that he talked with the complainant about the income tax return, and that the complainant stated, in substance, that he held the stock in his name that belonged to the other boys and girls; which conversation the complainant denied. The evidence of this witness is inconsistent with the record, for each of the defendants never claimed that the complainant had stock which was their property, and that the money received, therefore, by the complainant belonged to them.”

Tn all material, respects the chancellor’s findings were in favor of the complainant with the exception that the acceptance of the gift and income tax checks created, as he held, an estoppel and these are the words of his opinion on this subject:

“It is not controverted that the complainant received as a refund for income tax paid by him from Thomas Cusack, Trustee, the amount evidenced by checks, one being dated September 24, ,1925, for $3,674.78 and the other dated December 17, 1925, for $4,971.06. It will be noted that one of said checks was nine months and the other almost twelve months, after the five checks for $47,055.40 were indorsed by complainant. No contention is made that the amounts so received by complainant are not correct.
“If the fund is the property of the complainant, as contended for by him, why did he accept the income tax refund checks ? He would be liable for the income tax as owner, but his receipt of this money i§ inconsistent with his claim to ownership; and especially when the court considers the dates of the checks and the retention of this money paid, according to the agreements with the individual defendants, in consideration of the receipt by each of them of $47,055.40 from complainant.
“The complainant is a man of intelligence and has had a wide business experience, and he surely had ample time to reflect. The acceptance of this amount creates an estoppel to urge, at this time, his claim of ownership, and in the opinion of the court, is a ratification by the complainant of his acts at the meeting that was held in the office of Thomas Cusack, Sr., on the 23rd day of December, 1924.”

For these reasons the chancellor dismissed the bill for want of equity.

The will of Thomas Cusack, Sr., was offered and received in evidence, the sixth clause of which is as follows:

“I direct that my adopted son, Harold Cusack, shall receive no part of my estate under this Will, as I have already made what I consider ample provision for him.”

This provision may be designated as a testamentary falsehood, for so far as having made ample, or any, provision for complainant, he had despoiled blm of within less than $15,000 of a quarter of a million dollars. Furthermore the release recites as a consideration moving from Cusack, Sr., to complainant the sum of $380,277, paid by Thomas Cusack, Sr., to complainant, whereas in truth and in fact, as undisputably appears from the record, he received but $145,000 from Cusack as trustee, or in any other capacity. It is quite apparent from the testimony in the record that complainant was subservient to the whims and conduct of his foster father and had been for many years, and that when he exacted the release from complainant, which he had no right to do as trustee, he took an undue advantage of his position. He arbitrarily exacted from complainant five checks, one for each of his children of $47,055.40 each. As trustee it was Thomas Cusack’s duty to account to complainant for every dollar of the trust fund, and it was not only inequitable, but unconscionable, for him to exact a release of all claims and demands without so doing. That was his duty, for the nonperformance of which the law will not excuse him, and upon his death the burden of making such an accounting rested upon the executors of his will and his children who received any part of the trust property. Maher v. Aldrich, 205 Ill. 242.

It was held in Breit v. Yeaton, 101 Ill. 242, that the doctrine is well settled that a cestui que trust may pursue the proceeds of trust property, and charge it with the original trust any property in which they may be invested, as against all who have actual or presumptive notice of the trust.

Complainant did not seek to put his property, the proceeds of the sale of his stock in the Cusack Company, in trust with his foster father, or anyone else. By no word, act or deed of his did he constitute his foster father his trustee for such funds. He was in a measure forced to acquiesce in the conduct of his foster father in assuming the office of trustee for his property, and when the release was exacted from him by his foster father, trustee, he was in a measure constrained by the actions of the Cusack defendants and their father to do so. There was no act or ratification by complainant by indorsing the five checks for $47,055.40 each, payable to the Cusack children, or by paying the federal taxes herein above referred to, for while, as a matter of form, these five checks were drawn against the trustee account of Thomas Cusack, Sr., of which the funds of complainant were a part, it is a doctrine of equity that it will go through forms to the substance, and when you arrive at the substance of this transaction, there was nothing taken from the trustee funds by the drawing of these five checks of any amount whatever, because these were mere surface transactions, for all the checks were immediately deposited back in the bank into the trust estate of Thomas Cusack, Sr., trustee. The method used was but a subterfuge and had no real substance as a transaction between the parties, — the trustee lost no money and complainant did not gain any, neither did any of the five children by that particular performance. When the checks were redeposited in the trust account that account remained the same as it did before the checks were originally drawn. There is no pretense in this record that Thomas Cusack, Sr., as trustee, ever accounted to complainant, the cestui que trust, and having assumed the office of trustee equity will demand that he account for the trust property to the beneficiary.

'In Fox v. Fox, 250 Ill. 384, it was held that no particular form of words is necessary to create a trust, when the writing makes clear the existence of a trust. If the writing makes clear the existence of a trust, the terms may be supplied aliunde.

The actions of Thomas Cusack, Sr., in his creating the trust with complainant by depositing his funds in the Illinois Merchants Trust Company, as the funds of Cusack as trustee, and all of his dealings with said funds, clearly stamp not only the funds themselves as trust funds, but Thomas ‘Cusack as the trustee thereof. The learned chancellor did decide the point as to the duty of Cusack, Sr., as trustee, to account to complainant as the beneficiary of the fund, which he held in trust belonging to and the property of complainant, but gave little heed to it in its application to the rights of complainant. We think the doctrine applicable here is well stated in 39 Cyc. 526, in these words:

“As a general rule a trust may be enforced against the trustee, his assignees or personal representatives, heirs or devisee, and all persons who acquire the trust funds or property or interests therein, with notice of the trust equities, or without consideration; and as against all persons who participate with the trustee in misappropriating the trust fund or property, or who claim a benefit from the trustee’s acts; and this liability may be enforced against the trustee and such other parties jointly or severally.”

It is a peculiarly noticeable fact that complainant made no request for any check that his foster father wrote out in his name, and that there were no words between them, as complainant yielded to the assumed authority of his foster father and did what he told him. to do. This was the control and power Thomas Cusack, Sr., exercised over Ms cestui que trust, complainant herein, and it is patent that complainant was powerless to assert Ms rights as against his trustee, and that he was in a measure coerced to yield to the unlawful demands of Ms trustee.

As there was no gift the doctrine of estoppel has no application as between the Cusacks and complainant, and as there was in fact no consideration moving from Cusack, trustee, to complainant for the execution of the release, complainant is not estopped from demanding an accounting from the executors of the trustee and the cMldren who were the recipients of the fund, wMch in equity belongs to complainant.

The delay in the assertion by complainant of his rights by filing Ms bill against defendants has in no wise prejudiced them for the situation did not change from the time the release of complainant was exacted from him by Cusack, trustee, to the time when the bill was filed. No defense open to the defendants at the time of the giving of the release has been lost between the time of the giving of the release and the filing of the bill herein. NotMng in the meantime had intervened to prejudice the rights of either complainant or the defendants. Complainant has the same right to assert his claim and the defendants to defend against that claim, as they would have had if the bill had been filed immediately after the delivery of the release by complainant to Ms self-constituted trustee, his foster father, Thomas Cusack, Sr.

The doctrine of estoppel if applicable to the instant case may be found in Holcomb v. Boynton, 151 Ill. 294. In Vail v. Northwestern Mut. Life Ins. Co., 192 Ill. 567, the court said: “When an estoppel is claimed by reason of silence or fraud, it must be silence when there is a duty to speak, or it must be a case of false representation ‘with a fraudulent purpose and a fraudulent result.’ ” Gallagher v. Northrup, 215 Ill. 563; Sutter v. People’s Gas Light & Coke Co., 284 Ill. 634, in which the doctrine of Holcomb v. Boynton, supra, is reiterated. Furthermore, defendants predicated their defense upon the theory that the five checks for $47,055.40 each were gifts from complainant, which they failed utterly to sustain. An estoppel in no form is found in defendants’ pleadings.

We hold for the reasons hereinabove recited that the chancellor erred in dismissing complainant’s bill for want of equity, and in not granting complainant the relief prayed in his bill, and to which he is entitled under the proofs in the record, and therefore the decree of the superior court is reversed and the cause is remanded to the superior court with directions to enter a decree in favor of complainant and against the defendants Thomas Cusack, Jr., and Charles E. Cusack, individually and as executors of the last will and testament of Thomas Cusack, Sr., deceased, Francis J. Cusack, Anna M. Cusack Johnson, and Jane Evelyn Cusack for the sum of $235,777, with interest thereon at 5 per cent per annum from December 27, 1926, the date of the filing of the bill herein, to the entry of such decree; that as to the defendant executors, the amount of such decree shall be paid in due course of administration of the estate of Thomas Cusack, Sr., deceased, and as the amount of said decree arises from trust funds in the hands of Thomas Cusack, Sr., at the time of his death, it may be paid in the same way as if the claim had been proven against the estate of Thomas Cusack, Sr., deceased, in the administration of his estate in the probate court of Cook county as a claim of the "fifth class. The amount received by Thomas Cusack, Sr., of complainant’s money, the proceeds of the sale of his stock in the Cusack Company to Blair & Company of New York City, was $380,277. All he paid was $145,000 in two payments, one of $40,000 and the other of $105,000, and as Cusack, Sr., was a faithless trustee and his children were his co-conspirators and the beneficiaries of their father’s unfaithfulness to the extent of $235,777, neither the estate of Thomas Cusack, Sr:, nor his children, under well-settled rules of law, are entitled to any compensation for their maladministration of complainant’s trust estate.

Reversed and remanded with directions.

Wilson and Btner, JJ., concur.


text:
    Sam Best, Appellant, v. Nora M. Hayes, Surviving Owner and Successor in Title, Appellee.
    Gen. No. 33,147.
    Opinion filed May 29, 1929.

      Alexander W. Jamieson, for appellant.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from an order of the municipal court denying a motion made by defendant to vacate a judgment entered by confession in favor of plaintiff and against defendant for the sum of $1,270 and costs.

The common-law record only is befpre us. T.here is no bill of exceptions found in the record. The point argued for reversal rests in the contention that the original judgment was void for the lack of an affidavit as to the execution of the warrant of attorney. The common-law record does not show the absence of such an affidavit.

The affidavit of claim sets forth inter alia that the lease in which the warrant to confess a judgment is contained was executed by the parties to it, and that their signatures thereto are their genuine signatures. The common-law record shows no irregularity and the cognovit under the warrant of attorney clause in the lease waives all errors which may intervene in the entry of the judgment, etc.

There is no vacation time of the courts in Cook county. Therefore the cases cited by counsel in which judgments by confession were entered in vacation have no bearing on the instant case. In the absence of a bill of exceptions it will be presumed that the court heard sufficient testimony to warrant the entry of the judgment under the cognovit. Where a judgment by confession is entered in vacation no testimony can be heard because the clerk of the court entering the judgment is simply a ministerial officer, and has no power to take or heár testimony for any purpose. On the motion to vacate the judgment, it was contended that the court gave leave to plaintiff to amend the cognovit on its face, by allowing an associate attorney, of the substituting attorneys, to insert in the affidavit of claim that he had knowledge of the facts and to execute the affidavit of claim and to swear to it in open court in the presence of and by the deputy clerk of the municipal court of Chicago on the 25th day of May, A. D. 1928, who acknowledged the affidavit of claim on that day, although the judgment had been entered on the 9th day of April, 1928.

Whatever may-have been done on the hearing of that motion is not a part of the common-law record and without a bill of exceptions the action of the court on that motion is not before us for review.

It was held in Pratt v. Indian River Garden Corp., 211 Ill. App. 505, that even though defendant perfected an appeal from an order overruling a motion to vacate a judgment, if there is a failure to preserve, by bill of exceptions, the affidavit in support of the motion, there is nothing to review and the judgment will be affirmed. That is the exact situation in the case at bar.

In Boyles v. Chytraus, 175 Ill. 370, it was held that the same presumptions will be indulged in favor of a judgment by confession entered in term time upon a cognovit as are indulged in the case of original judgments of courts of general jurisdiction; and that in the absence of a bill of exceptions preserving the warrant of attorney, affidavit of execution and the note upon which judgment by confession was rendered in term time, it will be presumed the court heard evidence on the questions as to whether the note was properly indorsed, and whether the warrant of attorney was so drawn as to bind the defendants. The foregoing is an affirmance of the same case in 66 Ill. App. 592.

The original judgment is not before us, simply the proceeding denying defendant’s motion to vacate the judgment by confession. As said in Lake Shore Sand Co. v. Goodman, 85 Ill. App. 353:

“This court has no jurisdiction to consider any alleged error at the trial or in the entering of judgment. ’ ’

And in Waterman v. Caton, 55 Ill. 94, the court said:

“The judgment having been entered in term time, the note and warrant of attorney could not become a part of the record, unless introduced into it by a bill of exceptions. In this case there was no bill of exceptions taken. The rule laid down in the case of Magher v. Howe et al. 12 Ill. 380, must govern.
“In Durham v. Brown, 24 Ill. 94, it was held, that where the proper papers are filed, upon a confession of judgment, they become, by force of the statute, a part of the record, and no bill of exceptions is necessary to bring them before this court, but, in that case, the judgment was entered in vacation, and the rule there laid down does not apply here. The distinction, in that regard, is clearly shown in the case of Roundy v. Hunt, 24 Ill. 600; when the judgment is entered in vacation, upon the filing of the proper papers, they became a part of the record, without being embodied in a bill of exceptions; but when the judgment is entered in term time, the warrant of attorney and the note upon which the judgment is confessed, can become a matter of record only by being preserved in a bill of exceptions.”

• For the failure of defendant to preserve by bill of exceptions the proceedings upon his motion to vacate the judgment, naught is presented, by the record for our review. Therefore the judgment of the municipal court is affirmed.

Affirmed.

Wilson and Ryner, JJ., concur.


text:
    The People of the State of Illinois for use of I. Fuchs, Appellant, v. Bernard W. Snow, Principal, and Maryland Casualty Company, Appellees.
    Gen. No. 33,200.
    Opinion filed May 29, 1929.

      Schoen & Green, for appellant.
    Egbert P. Eollo, for appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action on the official bond of defendant Snow as bailiff of the municipal court of Chicago. There was a trial by agreement before the court which resulted in a finding against the plaintiff and a judgment thereon of nil capiat and for costs, and plaintiff brings the record to this court by appeal for our review.

It appears that the plaintiff obtained on May 20, 1927, a judgment against the Logan Gift Shop for $402 and costs; that on August 26, 1927, there was in the hands of defendant Snow, as bailiff of the municipal court, an execution upon the foregoing judgment, and that under such execution he had levied upon certain personal property of the Logan Gift Shop in the City of Chicago and had advertised the same for sale at auction, as by law provided, at 2:30 o’clock" in the afternoon of the last-mentioned date.

At the time and place appointed for the sale the defendant, Bailiff Snow, by one of his deputies, attended and proceeded to offer for sale the goods levied upon under the execution. After knocking down in the usual fashion many of the articles offered, the further sale was interrupted by the service of an order of the District Court of the United States, sitting in bankruptcy, in the matter of the .Estate of Logan Gift Shop, a bankrupt. All the acts of the bailiff regarding the sale were not only suspended, but all the acts theretofore done in proceeding with the sale were rescinded. No money was retained from the bidders, and subsequently all the goods levied upon under the execution were by Bailiff Snow released and surrendered to one Maurice Klein, receiver of the estate of Logan Gift Shop, a bankrupt, without any order or direction so to do from said District Court on the 26th day of August, 1927.

The facts are not in dispute, the contention of plaintiff being that Bailiff Snow had no lawful right to surrender the goods levied upon by him under plaintiff’s execution, and that in so doing lost to plaintiff the lien which he had upon the goods so levied upon, which it is not controverted were of sufficient value, if the sale had been continued until all the levied upon goods had been sold, to satisfy the amount due under the judgment and the execution issued thereon to satisfy plaintiff’s judgment with costs, it being in evidence that the goods were not only of value sufficient to bring the amount of the execution with costs, but that a bidder was present and stood ready to bid for the property the amount due under the execution with costs, and made such an offer to the bailiff.

Plaintiff concedes that the bailiff was within his rights in obeying the injunctional order of the United States District Court, but that his neglect of duty arose from his failure promptly to postpone the date of sale as provided by statute, and by his affirmative act in surrendering the property levied upon, thereby invalidating the lien of the execution without any order of the municipal court directing him so to do.

Plaintiff further admits that the bankruptcy court had the right to restrain the proceeding in the State court until the respective rights of the "trustee in bankruptcy and the municipal court judgment creditor be adjudicated by a court of competent jurisdiction. The order of' the District Court in the matter of the bankruptcy of Logan Gift Shop recited that the matter coming up for hearing before the referee sitting in the absence of the judge of the court, upon the verified petition of Carson, Pirie, Scott & Co., Albany Lamp Shade Co. and Percy M. Rose, the plaintiff and the bailiff, their agents, deputies or representatives were restrained from proceeding with the sale of the assets of Logan- Grift Shop under the writ of execution of the municipal court, or turning over the proceeds to any person, in the event that the sale had already been consummated.

While there is no dispute as to the time of the filing of the bankruptcy petition and the entry of the order restraining the bailiff from proceeding with the sale, etc., there is no dispute but what the restraining order was served while the sale by the bailiff’s deputy was progressing and before it had been completed. The rule regarding a levy of an execution upon property sufficient in value to discharge the amount of the judgment with costs is as stated in the early case of Smith v. Hughes, 24 Ill. 270, the court saying:

“No rule is better settled, or more uniformly acquiesced in, than that a levy of personal property, sufficient in value to discharge the execution, is a satisfaction of the judgment. When the officer has seized property of the defendant, on execution, it is thereby appropriated by the law to its payment, and the officer is bound for its custody, and that it shall answer for the debt. . . . Nor has the officer making the levy, any power, oil-his own mere motion, to release a levy and seize other property. . -. . Where a levy has been made, unless released by agreement of defendant, it can only be removed by a sale, or by an order of the court issuing the execution. ’ ’

It is patent that Bailiff Snow was not by the injunctional order required or authorized to deliver the property levied upon by him under plaintiff’s execution in the municipal court to the receiver of Logan Grift Shop under the order served upon him at the time he stopped the sale. Neither was he authorized so to do by any order of the municipal court, and without an order either from the municipal court or in the bankruptcy proceeding authorizing him to deliver the property levied upon to such receiver, he had no business to make the delivery which he did. The law on this subject is well stated in Brandenbury on Bankruptcy, section 250, where the author states that:

“The bankruptcy court will also restrain a threatened levy by a sheriff to satisfy a judgment against the trustee. If a levy be made upon the bankrupt’s property upon an attachment granted within four months of the filing of the petition, the sheriff is not required to assume the responsibility of releasing the levy, but the trustee should apply to the court granting the attachment for an order releasing the same.” Hardt v. Schuylkill Plush & Silk Co., 8 A. B. R. 479.

The order of the bankruptcy court in Logan Gift Shop, Bankrupt, cannot be attacked collaterally in this proceeding. In Cooper v. Mowry, 16 Mass. 5, the court said:

“Where the attachment has been released without the consent of the sheriff or the creditor, the attaching officer cannot avoid his obligation. . . .”

That was an action by the sheriff against his deputy on his bond for unauthorizedly releasing property levied upon under due process of law.

While the bankruptcy court was impotent to interfere with the iurisdiction of the municipal court, yet-it had the right to enjoin plaintiff, a creditor of the bankrupt, from proceeding further to enforce his rights by enjoining the bailiff of the municipal court from proceeding further with the sale under the execution. The lien, if any, nlaintiff had under the levy made by defendant Bailiff Snow under the municipal court execution may be a matter of adjudication in the bankruptcy court. If the bankruptcy court should hold that the municipal court execution was a lien paramount to the title which the receiver required under his appointment as such in the Logan Gift Shop bankruptcy proceeding, that is a matter which may be determined in a summary proceeding in the District Court under the Bankruptcy Act. In other words, the rights of the parties may still be settled in the bankruptcy proceeding. By the admission of plaintiff there is but $227, exclusive of costs, with legal interest from the date of the judgment, due.

For the unauthorized delivery by Bailiff Snow of the goods levied upon by him under the execution issued upon the judgment of the plaintiff in the municipal court, the judgment of the municipal court is reversed and the cause is remanded for a new trial in accord with the views in this opinion expressed.

Reversed and remanded.

Wilson and Byner, JJ., concur.


text:
    Thorwald A. Tollifsen, Appellee, v. Middle States Investment Company, Appellant.
    Gen. No. 33,272.

      Opinion filed May 29, 1929.
    Altheimer & Mayer, for appellant; A. B. Manion, of counsel.
    Isidore Fried and Edward Horchler, for appellee; Bernard A. Stol, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

■ This is an action in trover. In the declaration plaintiff avers that he was possessed as of his own property of a certain promissory note dated July 20, 1926, for the total sum of $3,150, made by Hans T. Bjorndal and Martha T. Bjorndal payable to themselves and by them indorsed (the note reciting that it is secured by trust deed on real estate in Cook county, Illinois, to Adolph Anderson, trustee), in certain monthly instalments, with interest at 6 per cent on the entire balance remaining from time to time unpaid, which note was secured by trust deed conveying certain property in Cook county, Illinois, made by Hans T. Bjorndal and Martha T. Bjorndal to Adolph Anderson, trustee, which trust deed was duly recorded in the office of the recorder of deeds of Cook county, Illinois, on July 23, 1926. The declaration further alleges that on July 20, 1926, plaintiff casually lost the note and trust deed out of his possession, and that afterwards on July 20,1926, the same came to the possession of the defendant Middle States Investment Company by finding, and that defendant well knowing that the note and trust deed were the property of plaintiff has not yet delivered the same or any or either of them to plaintiff, although often requested so to do, and on the same day defendant converted and disposed of said note and trust deed to its own use.

To the declaration defendant interposed a plea of not guilty. There was a trial before the court and jury and a verdict in favor of plaintiff and against defendant for the sum of $3,150, upon which, after overruling motions for a new trial and in arrest of judgment, the court entered a judgment, from which defendant has perfected and prosecutes this appeal.

The defendant bought the note and trust deed from Adolph Anderson, the trustee in the trust deed securing the note, for the sum of $2,526.50. The fact is not controverted that Adolph Anderson was the real estate agent in the sale of the property conveyed by the trust deed to him as trustee for plaintiff, who owned the same before conveying it, and that the note and trust deed aforesaid were given as part of the purchase money for the purchase thereof, and that the trustee Anderson, instead of delivering the note and trust deed to plaintiff, unlawfully converted the same to his own use, and after selling the same to defendant absconded with the proceeds, and that the sale to defendant was unauthorized by plaintiff and unknown.to him until after the sale to defendant.

The crucial question in this case is one of good faith on the part of defendant in its purchase of the note and trust deed from the trustee Adolph Anderson. Whether or not defendant acquired the note and trust deed in good faith is one of fact for the jury, and as said in Murray v. Lardner, 69 U. S. 110:

“The rule may perhaps be said to resolve itself into a question of honesty or dishonesty, for guilty knowledge and wilful ignorance alike involve the result of bad faith. They are the same in effect.” And in Goodman v. Simonds, 61 U. S. 343, relied upon in case, supra, Mr. Justice Clifford in the court’s opinion, speaking for the court, said:
“. . . the question whether the party had such knowledge or not, is a question of fact for the jury, and, like other disputed questions of scienter, must be submitted to their determination, under the instructions of the court; and the proper inquiry is, did the party, seeking to enforce the payment, have knowledge, at the time of the transfer, of the facts and circumstances which impéach the title, as between the antecedent parties to the instrument ? and if the jury found that he did not, then he is entitled to recover, unless the transaction was attended by bad faith, even though the instrument had been lost or stolen. Every one must conduct himself honestly in respect to the antecedent parties, when he takes negotiable paper, in order to acquire a title which will shield him against prior equities. While he is not obliged to make inquiries, he must not wilfully shut his eyes to the means of knowledge which he knows are at hand, as was plainly intimated by Baron Parke in May v. Chapman, 16 Mees. & W. 355, for the reason that such conduct, whether equivalent to notice or not, would be plenary evidence of bad faith.”

We find from the plenary evidence in this case that defendant acquired the note and trust deed in bad faith. On this point it was said in Arnd v. Aylesworth, 145 Iowa 185:

“Whether plaintiff has sufficiently satisfied the burden resting upon him and made good his claim to be an innocent purchaser is therefore a question for the jury, save in those instances where the testimony is not only consistent with the good faith of such purchase, but is such that no fair-minded person can draw any other inference therefrom. A categorical denial of notice or knowledge is something which in many, if not in most, instances cannot be opposed by direct proof; and the credibility of the witnesses, their interest in the case, the reasonableness or unreasonableness of their statements, the time, place and manner of the transaction, its conformity to or its departure from the ordinary methods of business, and all the other facts and circumstances which, though of slight moment in themselves, yet, when taken together, give character and color to the purchase under inquiry, constitute a showing which the court cannot properly pass upon as a matter of law. Observing this principle it has frequently been held that a denial of notice by the purchaser, though he be uncontradicted by any other witness, is not sufficient to justify a directed verdict in his favor.” Connelly v. Greenfield Sav. Bank, 192 Iowa 876. It was held in Chicago Title & Trust Co. v. Aff, 183 Ill. 91, that leaving the notes and trust deed with a trustee for cancellation and release was not such negligence as would estop the rightful owner of the paper from reclaiming them from a party who had purchased them from the trustee, although such party may have been negligent in so doing.

As to the burden of proof of bad faith, when the testimony of plaintiff showed that the title of Anderson, from whom defendant bought the note and trust deed, was defective, the burden was upon defendant to show affirmatively that it purchased the note and trust deed in good faith. Had it availed of such duty and inquired into the title of Anderson it would have discovered that Anderson had no title to the note or trust deed which he could of right pass to defendant.

The Illinois Negotiable Instrument Act, ch. 98, Rev. St., by paragraph 75, Cahill’s St. ch. 98, ¶ 75, provides:

“The title of a person who negotiates an instrument is defective within the meaning of this Act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.”

And by paragraph 79, Cahill’s St. ch. 98, ¶ 79, it is provided:

“Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. But the last-mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.

Defendant was put upon its inquiry when the trust deed disclosed the fact that Adolph Anderson, the trustee from whom it bought them, was the trustee and not the payee in the note. That fact put defendant upon inquiry to ascertain the bona fides of the representations made by Anderson. And furthermore it was an element for the jury to consider whether the fact that defendant bought the trust deed and nóte for much below their intrinsic value was not a suspicious circumstance, from which they may have doubted the bona fides of the title of Anderson, and these facts with the further fact that Anderson absconded and could not be found, were sufficient in fact to show that defendant did not acquire title to the note and trust deed in good faith.

As said in Dodge v. Bowen (Supreme Court of Massachusetts, not yet reported), 162 N. E. 368:

“In the case at bar, if the defendant proves that the title of any person who has negotiated the instrument was defective, the presumption arising by the first clause of 'section 82 (equivalent to our section 79) is destroyed, and the plaintiff has the duty of producing evidence that he or somebody through whom he took the note was a holder in due course at the time the instrument was acquired. Phillips v. Eldridge, 221 Mass. 103.
“The ruling of the judge that the defendant had to show knowledge in the plaintiff before showing a defect in title of some person who had negotiated the note was incorrect. It was enough if shown that the title of some person who had negotiated the instrument was defective. It was then incumbent upon the plaintiff to show he was a holder in due cóurse.” Bell v. McDonald, 308 Ill. 329. In Hide & Leather Nat. Bank v. Alexander, 184 Ill. 416, which was an action in trover, the court said:
“The note was transferred by Schintz fraudulently, and the rule is, that when a note has been put into circulation fraudulently, the presumption in favor of the holder’s title is overcome. Schintz committed a fraud by disposing of the note to which he had no title, and it rested upon the bank to show that it took it in good faith for value before maturity and in the usual course of business. (Wright v. Brosseau, 73 Ill. 381; Charles v. Remick, 156 id. 327; Hodson v. Eugene Glass Co., 156 id. 397; 4 Am. & Eng. Ency. of Law, 2nd ed. 321.) Whether the defendant succeeded in making such proof was to be determined as a question of fact, and should have been embraced within the hypothesis.” Beard v. Baxter, 242 Ill. App. 480; Merchants’ Loan & Trust Co. v. Welter, 205 Ill. 647.

The president of defendant testified that Anderson came to his office offering the note and mortgage for sale, and that he sent him to their legal department. An attempt was made to introduce in evidence' an affidavit by Anderson. This affidavit did not state any fact which would show that he was the owner of the note and trust deed. He simply swore to conclusions. However, whatever the affidavit may have contained, it was not admissible as evidence for defendant.

The last expression of an opinion of "our Supreme Court analogous to the one at bar is Owens v. Nagel, 334 Ill. 96, where it was held that under the Negotiable Instrument Act the holder of a promissory note, regular on its face, is deemed prima facie to be a holder in due course,- but if evidence is introduced showing that the title of the payee is defective, the burden is on the holder to prove that he, or the person under whom he claims, acquired title in due course and without notice of the defect; and it was further held that where a note is payable to a trustee, in a suit on the note by one who purchased it from the trustee without maldng any inquiry as to the latter’s authority to negotiate the note, the maker of the note may prove that the title of the payee was defective, within the meaning of the Negotiable Instrument Act, by evidence of the limitations of the trust under which the payee took the note and that it was negotiated in breach of faith and under circumstances amounting to fraud.

The note in question being payable to the order of the makers, and by them indorsed, being found in the hands of the trustee Anderson, was in the hands of the trustee, not the lawful owner thereof, and was tantamount to a note being payable to the order of the trustee, as the note in this case passed by delivery, and the trustee obtained no title thereto by withholding the same from the lawful owner, the plaintiff, so that Owens v. Nagel, supra, is analogous on every material point to the instant case.

We find no error in the giving of the instructions found in the record or the refusal to give those proffered by defendant. On the evidence before the jury they were clearly warranted in finding a verdict for plaintiff and in concluding in the reaching of their verdict that defendant was not the holder of the note and trust deed in suit in good faith, but took the same from the trustee Anderson in bad faith. The judgment of the circuit court being right is affirmed.

Affirmed.

Wilson and Ryner, JJ., concur.


text:
    Adolph Fallen, Appellee, v. William Rauguth, Appellant.
    Gen. No. 33,284.

      Opinion filed May 29, 1929.
    George W. Wilbur, for appellant.
    Harry A. Goldsmith and Simon T. Sutton, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action for a real estate broker’s fee, brought by plaintiff against defendant for having at his instance procured one Joseph A. Holpuch to agree to purchase the real and personal property of Arlington Cemetery Association,

There was a trial before court and jury with a resulting verdict and judgment of $5,000, from which judgment defendant prosecutes this appeal.

The evidence indisputably shows that defendant did employ plaintiff to sell the Cemetery Association property for a half million dollars, and that he did agree to pay plaintiff $50,000 if he procured a purchaser therefor. It does appear that plaintiff did procure a purchaser in the person of Holpuch, and that the parties had negotiations regarding the form of the contract, and that contracts'were drawn; and it further appears that a contract dated July 29, 1927, was approved by the defendant and the attorney for the purchaser ; that the first and second contracts drawn were changed, and that the third contract embodied such changes as had been suggested, and that at the time defendant was requested to sign the third contract, the minds of the parties had met and were in accord as to its terms; that it was agreed that the parties to the contract should meet on July 29, 1927, in the escrow department of the Chicago Title & Trust Company, where it should be executed. The defendant at that time failed to keep his appointment and refused to sign the contract.

It is contended that the purchaser Holpuch was not ready, willing and able to perform the contract, but Holpuch himself testified, without contradiction, that he was in a position not only to execute the contract, but to fully perform its terms.

The testimony of plaintiff regarding the transaction is corroborated by Holpuch, the purchaser procured by plaintiff, and also by Holpuch’s attorney. While it is true that this testimony was denied by the defendant and by his attorney, who withdrew his appearance as such attorney before taking the witness stand, however in this condition of the testimony it was the province of the jury to decide on which side was the preponderanee of the evidence. From their verdict it is evident that they believed plaintiff and his two witnesses, and disbelieved defendant and his witness attorney. The testimony of the plaintiff amply supports his contention. That being so, we are not at liberty to set aside the jury’s verdict. The evidence of an attorney, who takes the witness stand on behalf of his client, is not entitled to that credence which is given to the testimony of a disinterested witness.

It is argued that the verdict is contrary to the greater weight of the evidence, but an examination of all the evidence shows that it is in every particular sufficient to sustain- the jury’s verdict. (Nudelman v. Fish, 181 Ill. App. 507.) The jury were justified in finding that the failure to close the purchase was no fault of the plaintiff, and that such failure was caused solely by the conduct and actions of defendant in refusing to execute the contract, the terms of which he admitted stated the conditions which he had imposed upon the plaintiff for making the sale. As held in Goodmanson v. Rosenstein, 144 Ill. App. 243, it is not a question as to whether the real estate broker has obtained a contract which may be specifically enforced by the owner which determines his right to commissions. If such broker has procured a customer who is ready, willing and able to buy the property on the terms designated by the owner, he is entitled to recover his commission. That is the condition in the case at bar. Plaintiff procured a customer ready, willing and able to purchase the Arlington Cemetery Association property upon the terms imposed by defendant, and the only reason for the failure to consummate the contract was the action of defendant in refusing to execute the same.

The suit was originally commenced against defendant and the Arlington Cemetery Association, but was dismissed by plaintiff as to the Cemetery Association. This is argued for error. . However, plaintiff had a right to so dismiss the Cemetery Association under the Practice Act, as decided in Dickinson v. McKay, 177 Ill. App. 412, in which it was said that section 39 of the Practice Act, Cahill’s St. ch. 110, ¶ 39, permits .the discontinuing of a case as to any joint defendant, and this practice has frequently been approved. Citing McChesney v. Davis, 86 Ill. App. 380; Scanlon v. People, 95 Ill. App. 348; Beidler v. Richardson, 107 Ill. App. 536.

Defendant contends that the verdict finds no support in the declaration, that the commission agreed upon was $50,000, and that there is no evidence upon which the jury could base its finding of $5,000 damages. It will appear that the sale as contemplated was not consummated owing to the fault of defendant in not executing the contract with the purchaser procured by the plaintiff. It has, however, been held that where one is prevented by the other party from completing the contract for services and for that reason the contract is not carried out, he may recover the value of his services upon a quantum, meruit. It appears that plaintiff devoted nearly a year in making the sale for which he claims a commission, and that for such service the jury was justified in finding that $5,000 was reasonable compensation. (5 Corpus Juris, secs. 20, 55, pp. 1388, 1399.)

We find no procedural error or errors in rulings upon instructions.

The record being without error, the judgment of the circuit court is affirmed.

Affirmed.

Wilson and Byneb, JJ., concur.