text:
    C. N. Reynolds for Use of C. Walter Jones, Appellee, v. Earl Weakly et al., Appellants.
    Gen. No. 9,088.
    Opinion filed January 17, 1938.
    Robert I. Pugh, of Slielbyville, for appellants.
    W. W. Hartsell, of Shelbyville, for appellee; D. A. Milligan, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

Suit was filed in justice court for the use of C. Walter Jones, plaintiff appellee, against Earl Weakly and two other defendants appellants, and judgment therein was entered by default, from which an appeal was taken to the county court of Shelby county wherein the case was tried de novo by the court without a jury, and judgment was entered in the sum of $500 in favor of plaintiff, from which an appeal was thereupon taken to this court.

From the evidence and exhibits appearing in the abstract and record herein, the facts in this case appear to be substantially as follows: In October 1930, appellant Weakly moved from his farm into the City of Shelbyville, and thereafter, in February, 1931, leased his farm together with certain cattle, horses and other livestock and farming equipment and products thereon to appellee Jones, who entered upon and operated the same for a brief time under an arrangement whereby Weakly received one half of the milk and was to receive one half of the farm products. During the month following, a new arrangement was made for the purchase of said livestock and equipment and operation of the farm by appellee as tenant of said appellant. Appellee gave a certain chattel mortgage on the property to secure an old indebtedness to one Fire-baugh which was later foreclosed and all of said property was sold and bid in by said mortgagee. Thereupon appellant Weakly sued out a writ of replevin, wherein all of said property including two milk cows and a mare referred to in this suit were described. When the writ was served, the constable could not find or take into possession the two cows and mare in question, which had been removed from the premises by appellee without the knowledge or consent of appellant, to another farm upon which appellee was then living. This original replevin suit upon which recovery was had by appellant was filed on September 25, 1931, was heard in the circuit court of Shelby county at the October term, appealed to this court, and judgment reversed and cause remanded in January, 1933 (Weakly v. Firebaugh, 269 Ill. App. 123). It was retried in the circuit court and the property taken under the writ was awarded to the appellant Weakly, which judgment was later affirmed by this court upon appeal by the administratrix of the estate of said mortgagee Firebaugh, in an opinion filed on Jan. 14, 1935 (Weakly v. Firebaugh, 278 Ill. App. 634 [Abst.]), and rehearing denied on April 2,1935.

During all of this time appellee Jones had retained possession of and fed and milked the two cows in question and used the gray mare in his farm work. He first paid pasture rent on appellant’s farm, but removed therefrom prior to the filing of the replevin suit, and the mare and two cows were removed by him to another farm, and at all times thereafter appellee retained possession of and so fed and milked the two cows, using-part of the milk and selling the remainder and kept and used the gray mare for work upon the farm to which he had removed. During the litigation in the above replevin suit, appellee had claimed that the property in dispute belonged to mortgagee Firebaugh and not to appellant, and all of the property was held adversely to the claims of appellant, in the replevin suit. After final disposition of that suit in his favor, appellant demanded possession of the two cows and mare in question, but appellee refused to surrender them, whereupon appellant sued out an additional writ of replevin and took possession of the stock in question. He dismissed this suit and paid the costs and "thereupon appellee Jones filed suit on the replevin bond for damages alleged to have been sustained and due him as an agister to whom money was payable from appellant owner to appellee in the sum of $500 for feeding- and caring- for the three animals and so claiming an agister’s lien under sections 42 and 43 of chapter 82, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 74.52, 74.53.

Upon a trial of this case by the county court without a jury, judgment was rendered in favor of appellee and against appellant in the sum of $500, from which judgment this appeal was taken.

The main contentions made by appellant in his assignments of error are that no contract, express or implied by the parties, existed upon which to base a lien or charge for money for the feeding and caring of the livestock in question; that a party cannot be made a debtor against his will and at the desire of his creditor; that the question of the rights of the respective parties was adjudicated in the former replevin suit, and that the judgment of the lower court is contrary to the law and the evidence.

It is conceded that the livestock in question was never paid for by appellee under the original arrangement; that he undertook to mortgage and dispose of the same without the knowledge or consent of the appellant; that he so removed the same from appellant’s farm to another place and kept and used the livestock with his other cattle and horses on the farm to which he moved for general farming purposes; that he either used in his family or sold all of the milk produced by the two cattle and used the mare for farm work when its services were required; that he at no time conversed with the defendant or had any contract or understanding with him concerning the keeping and feeding of the animals on the farm to which they were removed and that he paid no rental and made no accounting for the use of same. He kept no account of the amount of the feed given to the animals, of the amount of milk produced, or the time for which he used the mare in his farm work.

It is apparent from the evidence that the animals were kept and fed by appellee entirely for his own use, during all of which time he was making claim to the livestock adverse to the rights of appellant herein. He now says that he makes no claim to the livestock or to any interest therein except such claim as arises from his said statutory lien as an agister.

In the case of Root v. Utter, 173 Ill. App. 473, wherein appellant in that case sought to recover certain livestock held by appellee on his farm under claim of an agister’s lien in the sum of $350 for feed furnished the stock, the court said: “The stock was fed by appellee at the farm during the time, and the work animals were used by him on the farm whenever their services were required. Appellee was never requested by Harbin or the mortgagees to pasture and feed the stock and there is no evidence they were left there for that purpose. Appellee knew Harbin had been restrained at the instance of his daughter- from removing the stock. . . . He kept no account of the feed of the horses nor how much of the time he worked them. It is apparent from this testimony that appellee, if he was keeping the stock for anybody, it was for his daughter whose injunction writ restrained Harbin from taking it away and not as an agister for Harbin. . . . Appellee did not under the evidence come within the definition of an agister entitling him to a lien upon the property and it was error to give him such lien.”

This court further held in that case that “It is elementary that one person cannot create another his debtor without that other’s consent. Dedman v. Williams, 2 Ill. (1 Scam.) 154; Durant v. Rogers, 73 Ill. 121; Wilton v. Taswell, 86 Ill. 29. A person cannot make another his debtor by performing labor for him against his wish and without his assent. Alton v. Mulledy, 21 Ill. 76. An agister is defined to be one who receives and pastures cattle for hire.” Howard Commission Co. v. National Live Stock Bank, 93 Ill. App. 473.

There was no hiring here, but an attempt is made “to create another his debtor without that other’s consent.” The facts in the case negative the existence of either an express or implied contract upon which to base a claim for an agister’s lien under the statute in question. Under facts showing that the livestock was converted by the appellee to his own use against the wish of the appellant as in the instant case, no agister’s lien Avould attach to secure the payment of a claim against the appellant.

Section 42 of chapter 82, Ill. Rev. Stat. 1937; Jones Ill. Stat. Ann. 74.52, concerning liens of stablekeepers and agisters provides that “Stablekeepers and any persons shall have a lien upon the horses, carriages and harness kept by them for the proper charges due for the keeping thereof and expenses bestowed thereon at the request of the owner, or the person having the possession thereof.” Section 43 provides that “Agisters and persons keeping, yarding, feeding or pasturing domestic animals shall have a lien upon the animals agistered, kept, yarded or fed, for the proper charges due for the agisting, keeping, yarding or feeding thereof.” It is clear that the facts in this case do not bring the appellee under the provisions of either of the above sections and that the lower court was in error in holding that the appellee had sustained damages as an agister as claimed in his suit. There must be some definite agreement, express or implied, relative to feeding and caring for the animals in order to entitle the claimant to the benefit of an agister’s lien securing payment of such claim. Millikin v. Jones, 77 Ill. 372; Root v. Utter, 173 Ill. App. 473, 107 A. L. R. 1078; Durant v. Rogers, supra; Donofrio v. Watson Bros., 83 Wash. 41, 145 Pac. 75; Thomas v. Mann, 22 Wyo. 99, 135 Pac. 1088.

While it may well be conceded that in a proper case such lien would attach (Pearce v. Vittum, 193 Ill. 192, 61 N. E. 1116) this court is of the opinion that under the facts herein no lien existed in favor of the appellee as an agister under the provisions of the statute and that the appellee was not entitled to recovery on his claim.

The judgment of the county court of Shelby county is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Florence Aubry and Angela Aubry, Appellees, v. Ralph Desper and John O’Donnell, Defendants. John O’Donnell, Executor of the Last Will and Testament of Frank O’Donnell, Deceased, Appellant.
    Gen. No. 9,244.
    Opinion filed January 21, 1938.
    Robert Carr, Robert C. Carr and Joseph D. Caer, all of Ottawa, for appellant.
    John H. Armstrong, of Ottawa, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of La Salle county, Illinois, for $2,598.80 in favor of Florence Aubry and Angela Aubry, appellees, v. Ralph Desper, sheriff of La Salle county. The money involved in this suit is the surplus arising from a sheriff’s sale of land in La Salle county on redemption of said lands from a sale had in a mortgage foreclosure proceeding. There is no dispute as to the facts.

On and prior to January 8, 1924, Jeremiah O’Con-nor, who is the father of the appellees, was the owner of 160-acres of land in Waltham township, in La Salle county, Illinois. On January 8, 1924, he executed a deed of trust on said land to T. B. Kendrick, trustee, to secure 10 notes of $1,000 each, with interest at six per cent per annum. On February 24, 1925, Jeremiah O’Connor executed a second deed of trust on said lands to the said T. B. Kendrick, as trustee, to secure three notes for a total of $5,000, due five years after date with interest at the rate of six per cent per annum. Of the whole $5,000, Nellie, Nora, and Kate O’Donnell owned $2,000 of these notes and Margaret Slattery owned $3,000. On December 4, 1930, L. M. Lucey & Company procured a judgment in the circuit court of La Salle county against Jeremiah O’Connor for $602.45, and on March 3, 1932, Robert L. Smith, receiver of the People’s Trust & Savings Bank, procured a judgment in the circuit court of La Salle county against Jeremiah O’Connor for $1,179.19. Executions on each of the above judgments were issued and placed in the hands of the sheriff, who returned them “no property found; no money made.”

On March 3, 1932, Jeremiah O’Connor executed a quitclaim deed which conveyed to his daughters, the appellees, all of the real estate in Waltham township, subject to incumbrances of record. The consideration for this deed was the past and future care and support and maintenance of the grantor. On March 3, 1935, Helen Colwell, et al., the owners of the notes secured by the first trust deed filed their complaint in equity to foreclose the trust deed on the said real estate. They made Jeremiah O’Connor, Florence Aubry, Angela Aubry, Nora and Kate O’Donnell, Margaret Slat-tery, L. M. Lucey & Company, and Frank O’Donnell, administrator of the estate of Nellie O’Donnell, deceased, defendants. All of the defendants were served with process. On March 23, 1934, a decree of default was entered against all defendants, except Frank O’Donnell, executor of the will of Nellie O’Donnell, deceased. On May 14, 1935, a decree of sale was entered and on June 19, 1935, the master in chancery of the circuit court of La Salle county sold said real estate at public sale to Arthur H. Colwell, as trustee, for the sum of $12,759.54. The master issued a certificate of sale therefor. The amount bid was the full amount of the indebtedness, with interest and costs of suit, so there was no deficiency from the sale of the lands. No redemption was made by the appellees.

The L. M. Lucey & Company assigned their judgment to John O’Donnell, and O’Donnell on September 18, 1935, made a redemption from the foreclosure sale and paid the master in chancery $14,070.32 to make the redemption. On the same day execution was issued and levy was made on said- real estate. On October 25, 1935, the sheriff sold said land for $17,600, thus leaving a surplus of $2,598.80 in the hands of the sheriff over and above the redemption money, interest and costs, and the L. M. Lucey & Company judgment. This is the money involved in this suit. The appellees made demand upon the sheriff for this money, but the sheriff refused to turn it over to them because John O’Donnell, either individually or as executor of the last will and testament of Frank O’Donnell, deceased, was also making claim to the money.

On January 9, 1936, John O’Donnell, as executor of the last will and testament of Frank O’Donnell, deceased, recovered a judgment in the circuit court of La Salle county against Jeremiah O’Connor for $2,610.71. This judgment was based on one of the notes secured by the second trust deed to Kendrick, and was owned by Nellie, Kate, and Nora O’Donnell, but transferred to Frank O’Donnell, deceased, before judgment was taken on the note. On April 3, 1936, Florence Aubry, and Angela Aubry, appellees, commenced an action at law in the circuit court of La Salle county against Ralph Desper, sheriff of La Salle county, to recover this $2,598.80, and made John O’Donnell, as executor of the last will and testament of Frank 0 ’Donnell, deceased, a defendant because of his having made claims to the money. The case was tried before the court without a jury, which found in favor of the appellees.

On March 2, 1937, the court rendered judgment in favor of the appellees against Ralph Desper, sheriff of La Salle county, for $2,598.80, and rendered a judgment finding that John O’Donnell, individually and as executor of the last will and testament of Frank 0 ’Donnell, deceased, had no interest in the funds in the hands of the sheriff and was not entitled to recover in this suit. It is from this judgment that this appeal is prosecuted.

The appellees have made a motion to dismiss the appeal because the judgment is against Ralph Desper as sheriff, and no notice of appeal was served upon him for more than 90 days after the judgment in question was rendered. This motion was taken with the cáse. The motion to dismiss is hereby overruled. We do not pass upon the merits of the motion, but have decided to take the case upon its merits.

From the statement of the facts in the case it is readily to be seen that the dispute arose between the grantees under a quitclaim deed executed by Jeremiah O’Connor on March 3, 1932, and a judgment creditor of O’Connor’s, which judgment was entered January 9, 1936, almost three years after the deed in question had been executed. The appellants were made parties to the original foreclosure proceeding, but were defaulted. They made no effort to protect their lien against the property at that time. The foreclosure under the first trust deed, to which proceedings the holders of the notes secured by the second trust deed were made parties, extinguished any lien created by that trust deed, and left the holders of the notes secured by it in the situation of simple contract creditors. They did not procure a judgment until long after the maker of the notes had transferred all of his interest in the property to the appellees. The entire equities that the grantors had in the property became invested in the appellees by reason of the quitclaim deed. The judgment creditors of Jeremiah O’Connor, who became such creditors after 0 ’Connor executed the quitclaim deed to the appellees, have no claim on the money in the hands of the sheriff arising from the sale of the land at the sheriff’s sale under the Lucey judgment. The judgment of the trial court is hereby affirmed.

Judgment affirmed.


author: Mr. Justice Wolee

text:
    H. H. Wheeler et al., v. Kate B. Paddock et al. Bessie Paddock Dyer and W. H. Dyer, Appellants, v. Kathryn P. Hinkle et al., Appellees.
    Gen. No. 9,248.
    Opinion filed January 21, 1938.
    W. H. Dyer and Been B. Gower, both of Kankakee, for appellants.
    Anker C. Jensen and Eva L. Minor, both of Kan-kakee, for appellees.
   Mr. Justice Wolee

delivered the opinion of the court.

Daniel Paddock died December 28, 1905, leaving a last will and testament in which he created certain trusts and appointed trustees to carry out the provisions of the will. Par. 9 of the will provides as follows: “In case of the vacancy or refusal to act of any trustee, the circuit court of Kankakee County shall appoint other trustee or trustees to act in their stead, but no trustee shall be related to me either by blood, or marriage, or to any of my family, which said trustee shall give a proper bond, and shall manage my estate. But I especially will that no one who bears the name of Patrick shall ever be trustee, agent, or have anything to do with my estate.”

The trustee named in the will refused to act, and Kate B. Paddock, widow of the testator, at the request of the beneficiaries under the will, was appointed to act as trustee. Kate B. Paddock died and later. Shirley B. Paddock, a daughter of the testator, was appointed trustee. On October 7, 1922, Shirley B. Paddock resigned as such trustee and the court appointed H. H. Wheeler, one of the testamentary trustees, as such trustee, who qualified and took over the active management of the estate. In 1935 it was discovered that Wheeler’s accounts were in bad shape and he resigned. The court appointed W. IT. Dyer as such trustee. Mr. Dyer is a son-in-law of Daniel Paddock, deceased, and husband of Bessie Paddock Dyer. W. H. Dyer filed his bond with four of the six living daughters of Daniel Paddock, deceased, as sureties. This bond was approved by the court. H. H. Wheeler, the trustee prior to the time W. H. Dyer was appointed, had misappropriated funds to the sum of $12,000. Through the efforts of W. H. Dyer, this money was all recovered for the trust estate and is now held by Dyer as such trustee. On the 28th of June, 1937, the court entered an order vacating* the order appointing* Dyer trustee and discharged him from further duties. Bessie Dyer Paddock, one of the beneficiaries under said will, and W. H. Dyer as trustee have brought the case to this court for review.

It is insisted by the appellants that the court had no authority to remove W. H. Dyer as trustee, because he had not been given any notice of the hearing, and that there is no petition, request, or motion of any kind filed in the court demanding that he be removed as such trustee, and that the court had no authority to vacate the order of his appointment which was entered February 21, 1935. From am examination, of the abstract and record, we are unable to find where there is any petition by any one of the beneficiaries, or request for an order of the court calling on Dyer as such trustee either to make a report or resign as trustee. The appellees contend that the letter of June 3, 1937, written by W. B. Hunter to Mr. Wayne Dyer is a demand by the court upon Mr. Dyer to file his report and resign as trustee. It will be observed from an examination of this letter that it is.a communication from W. R. Hunter as an individual and not as judge of the court. The statement in the letter as follows: — “I felt that it would be better all around for you to file a final report and tender your resignation as trustee,” is not a demand that Dyer file a report and resign, but it is an expression of the feeling of Judge Hunter of what he thinks would be for the best interest of the trust estate.

A communication addressed to W. B. Hunter, judge of the circuit court of Kankakee county, Illinois, dated April 30, 1937, filed June 3, 1937, the same date Judge Hunter wrote the letter to Mr. Dyer, signed by all the beneficiaries of the estate except Bess Dyer, is as follows: “We, the undersigned, request immediate distribution of the ‘Liquid assets’ of the estate, being that part in cash and Government bonds, except a small reserve fund sufficient to meet taxes and current expenses.”

This instrument certainly cannot be considered as a petition filed by the beneficiaries of the trust to have Mr. Dyer removed as such trustee, as there is no mention whatsoever made of having Mr. Dyer removed as trustee.

The fourth paragraph of the decree appointing W. H. Dyer trustee to succeed H. H. Wheeler, resigned, was dated the 21st of February, 1935, and. is as follows: “It is adjudged, ordered and decreed that W. H. Dyer, be and he is hereby appointed trustee in this cause as successor to said H. H. Wheeler as said trustee and he is hereby authorized and directed to carry out the provisions of the trust as set forth in the last will and testament of Daniel H. Paddock, deceased.” The order then continues, fixing the amount of the bond that Mr. Dyer should give before entering upon his duties as such trustee, and that he shall file an inventory of the monies and property of said estate that come into his hands as such trustee. A bond was filed as before stated and the inventory showing the amount of property in the hands of Mr. Dyer as such trustee.

When the court signed this order it was an unconditional appointment of W. H. Dyer as trustee, to carry out the provisions of the will of Mr. Daniel Paddock, deceased. It is undisputed that W. H. Dyer is a son-in-law of Daniel Paddock, deceased, and under the terms of the will would not be a proper trustee to manage and care for the trust estate. It will be observed that, with the exception of the time that H. H. Wheeler was trustee, some member of the family had been acting in such capacity. The record discloses that Mr. Dyer has done splendid work in regaining the assets of the estate from Wheeler, the former trustee. It is our conclusion that the order appointing W. H. Dyer such trustee, was not a void order, but legal and binding until questioned in a regular manner in a court of competent jurisdiction. No doubt when the proper pleadings are filed a court of chancery has the right and authority to remove a trustee for cause, but the beneficiaries under the trust, and the trustee should have notice of such proceeding so that they can defend the action.

It is our conclusion that the court was without authority to enter the order of June 28, 1937, to vacate or set aside the order of February 21, 1935 as said judgment had become final. It is our further conclusion that the court could not remove Mr. Dyer as trustee without first entering some rule of court against him, or upon petition of "some kind being filed, asking that he be removed as such trustee.

The appellants asked leave to file an affidavit setting forth facts that do not appear on record and have presented the affidavits with their motion. This motion was taken with the case and leave to file the same is hereby denied.

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

Reversed.


author: Mr. Presiding Justice O’Connor

text:
    Mary Flanagan et al., Appellants, v. Madison Square State Bank et al. Logan L. Mullins and Walter P. Murphy, Appellees.
    Gen. No. 39,609.

      Opinion filed January 31, 1938.
    Rehearing denied February 14, 1938.
    Aaron Soble, John C. DeWolfe and Robert E. Dowling, all of Chicago, for appellants; Max "Chill, of Chicago, of counsel.
    Walter P. Murphy, pro se and for appellee Logan L. Mullins; Walter Wm. Pearson, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal plaintiffs seek to reverse an order entered by the superior court of Cook county April 23, 1937, wherein Logan L. Mullins, receiver, was allowed $1,360, Walter P. Mnrphy, his solicitor, $2,500, and Aaron Soble, John C. DeWolfe and Robert E. Dowling, plaintiffs’ solicitors, $3,860 “on account” of services rendered by them respectively in a stockholders’ liability suit.

June 15,1932, Mary Flanagan and a few other small creditors of the Madison Square State Bank filed their bill on behalf of themselves and other creditors, against the former and final stockholders of the bank, to enforce the snperadded constitutional liability of the stockholders. The same day and at about the same time Leonard F. McG-ee and John P. Harrington, who claimed the bank was indebted to them for $205, filed a similar bill. Upon the filing of the bills the court, on the same day, June 15, 1932, appointed Logan L. Mullins receiver, and enjoined all other creditors of the bank from prosecuting any suit at law or in equity to enforce the liability of the stockholders. July 21,1932, upon stipulation of counsel for plaintiffs in the two suits, an order was entered consolidating the causes in a single suit, and it was ordered that the receivership of Mullins be extended and he was authorized to function in the consolidated cause. January 22, 1937, a decree was entered fixing the liability of the stockholders of the bank, and an additional decree was entered February 11, 1937, fixing the liability of certain other stockholders.

The record discloses that prior to and after the entry of the decree the receiver, Mullins, collected from the stockholders sums aggregating $38,552.41, and on April 1, 1937, filed his second current report and account reporting to the court what he had done, and advising the court that neither he nor his solicitor had received any fees on account of the services rendered, and prayed that the report and account be approved and that reasonable compensation be awarded to him for his services and those of his solicitor. Attached to and made a part of the report is a detailed statement of the services rendered by his solicitor, showing the first services were rendered June 15,1932, and the last March 31,1937, such services taking 882% hours. April 23, 1937, plaintiffs filed their petition in which they set up the filing of the" suits, the appointment of the receiver, and. that a decree was entered against some 150 defendants for an aggregate amount of $550,000, of which the receiver had collected about $39,000 in cash; that they had employed solicitors to represent them, who had expended 1,031 hours in the preparation and trial of the case; that it would be necessary for them to render considerable more legal service before the matter was terminated, and that the solicitors had received no compensation to date. The prayer was that an order be entered fixing an allowance for fees for the solicitors and directing the receiver to pay them out of the funds in his hands. Attached to the petition is an itemized statement showing the work done and the time taken by the solicitors which, as stated, aggregated 1,031 hours. On the same day plaintiffs filed objections to the receiver’s second current account and report and objected to the allowance of any fees to the receiver for his solicitor and to any allowance to the receiver himself, except a mere nominal amount. The matter was heard by the court, the order entered, and the appeal is before us.

Plaintiffs’ position, as stated by their counsel, is that “complainants base their objections to any allowance of fees to the attorney for the receiver on the ground that this is a statutory proceeding under section 11 of the Banking Act, and that the receiver is not permitted by statute to employ counsel, and is not allowed to be reimbursed for counsel fees for himself. In the event the court is of the opinion that the attorney for the receiver has been properly appointed, and that there is provision for his appointment, that the attorney for the receiver has performed no legal work for the receiver which the receiver himself could not have performed, and that the items set out in his schedules are all superfluous and unnecessary and could have been performed by the solicitors for the complainants. . . .

“The attorneys for the complainants have brought a fund into being for the benefit of the creditors of a closed bank, by a statute under which this proceeding has progressed. The complainants’ solicitors are entitled to be reimbursed from that fund and the reasonable amount to be paid them should be a sum of at least 20% of the total amount collected.”

The record discloses that on February 18, 1933, an order was entered which recites that the matter came on to be heard upon the motion and petition of the receiver, “for leave to employ counsel, and upon notice to solicitors of record.” And it was ordered that leave be granted to the receiver, “to employ Walter P. Murphy as his counsel in the above entitled causes.” It further appears that Murphy began to render services to the receiver June 15, 1932, and that he had put in 94 hours before the order of his appointment; but we think it apparent that counsel for plaintiffs knew that Murphy was rendering services for a considerable period before the order authorizing the receiver to employ him was entered. The record further shows that although counsel for plaintiffs knew that Murphy was rendering services for the receiver, no objection was made that he was not authorized to do so until the second current account and report, were filed April 23, 1937, at which time the receiver and his solicitor were asking for an allowance of fees. Under these circumstances, we think it clear that counsel for plaintiffs ought not now to be permitted to say that neither the receiver nor his solicitor should be paid.

We are further of opinion that the court was warranted in entering the order authorizing the receiver to employ counsel. Section 11 of the Banking Act, Ill. Rev. Stat. 1937, ch. 16%; Jones Ill. Stats. Ann. 10.11 provides: “When any banking association, organized under this Act shall have gone into liquidation under the provisions of this section of the Act, the individual liability of the shareholders provided for by section six (6) of this Act may be enforced by any creditor of such association, by bill in equity, in the nature of a creditor’s bill, brought by such creditor on behalf of himself and all other creditors of the association against the shareholders thereof, in any court having jurisdiction in equity for the county in which such bank or banking association may have been located or established.

“The court in which such suit is instituted may appoint a receiver and require of him such bond and security as seems proper for the purpose of collecting, receiving and disbursing the amounts due from the stockholders on account of their ownership of the stock of said bank. Said receiver shall have authority upon the order of the court appointing him to employ such auditors and assistants as may be necessary to establish and recover the liabilities of the stockholders, and may, with the approval of the court enter into compositions with insolvent stockholders; if any. The costs of such proceedings, including reasonable solicitor’s fees for complainants’ solicitors,- and other necessary expenses of collection, may on the order of court, be paid out of the funds collected by said receiver.” From this section it is clear that the receiver would need the assistance of an attorney. While the receiver would have nothing to do with the case so far as establishing the individual liability of each stockholder was involved, it would be his duty to take proper action in case any of the stockholders who were insolvent sought to have their liability fixed and determined and the suit disposed of as to them. And it appears from the record that a great number of objections were filed by the receiver seeldng authority to settle with such stockholders, and many orders were entered granting the prayers of the several petitions and the suit was disposed of as to certain stockholders. We think it obvious that the receiver would not be qualified to do this work and many other necessary things without the aid of an attorney. While the statute above quoted expressly authorized the payment of a solicitor for plaintiffs out of the funds collected, and does not expressly mention the solicitor for the receiver, it provides that ‘ other necessary expenses of collection” may be paid out of the fund. But counsel for plaintiffs say such legal services as a receiver might require, “could have been performed by the solicitors for the complainants.” From this we assume that counsel mean to say that they should have been awarded all the fees earned by the solicitor for the receiver. The statute authorizes the filing of suit ágainst the stockholders by the creditors of the bank ostensibly for the benefit of the creditors and not for the benefit of the solicitors for plaintiffs, although this fact appears to have been frequently overlooked.' So it is immaterial to the creditors whether the attorneys for plaintiffs receive all the fees, or whether part of them go to pay the attorneys for the receiver. Of course there must be no duplication of services rendered by counsel, and neither should be paid for services which are not necessary. We think situations might arise where the receiver ought to be represented by independent counsel and not those representing the plaintiffs, because the interest of the plaintiffs and of the receiver might sometimes be conflicting.

Complaint is also made that the court erred in making an allowance to the receiver without hearing evidence as to the services performed by him. When the matter was on hearing, counsel for plaintiffs said they desired to put the receiver on the stand to show the services he had performed, — wanted to show that the payments to the receiver were voluntarily made, and that the amount the court indicated he was going to allow was too much. We think the court should have permitted counsel to go into this matter, although the record is not clear that the receiver was in court or that counsel desired a continuance of the case. But since it appears that the fee awarded to the receiver was only “on account” the question can be considered fully in subsequent proceedings, where the matter can be gone into.

The order of the superior court of Cook county is affirmed.

Order affirmed.

McSueely and Hatchett, JJ., concur.


text:
    In re Estate of Newman A. DuMont, Deceased. Loretta DuMont, Executrix of Last Will and Testament of Newman A. DuMont, Deceased, Appellant, v. Jane C. DuMont et al., Appellees.
    Gen. No. 39,756.

      Opinion filed January 31, 1938.
    Rehearing denied February 14, 1938.
    George E. Billett, Frank J. Makovsky and John V. Hanney, all of Chicago, for appellant.
    Friedeman, Cohn, Howard & Jonesi, Litsinger, Healy, Reid & Bye, and Herbert I. Cohen, all of Chicago, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Newman A. DuMont, who was more than 38 years of age, died testate September 30, 1936, leaving all of his property to his mother, Loretta DuMont, and appointing her executrix. Proof of heirship was made and the will admitted to probate November 5, 1936. Afterward, on March 11, 1937, a petition was filed by Jane C. DuMont, claiming that she was the widow of deceased, and that he left him surviving herself and Joan DuMont, their minor child, about 4% years of age, as his only heirs at law and next of kin; that she had not been notified of the proceedings in the probate court, and that the heirship, as entered by the probate court, showed the deceased left him surviving as his only heirs at law, his mother, brother and sisters, and the prayer was that the proof of heirship be amended so as to show that deceased’s heirs at law were his widow and child. An answer was filed to the petition, and after a hearing the court found that Joan DuMont was the legitimate daughter of deceased, and “the court further finds that the respondent herein, the executrix, by her counsel have agreed in open.court to make no objections to this finding and Order.” On the same day another order was entered finding that Jane C. DuMont was the lawful widow of deceased, and that deceased left him surviving as his only heirs at law and next of kin, his widow, Jane C. DuMont, and his child, Joan DuMont. An appeal was taken from these two orders, and. others not necessary to mention here, to the circuit court of Cook county, where there was a trial de novo, and a finding and judgment that Newman A. DuMont left him surviving as his only heirs at law and next of kin, Jane C. Du-Mont, his widow, and Joan DuMont, his daughter. Loretta DuMont, individually and as executrix of his last will and testament, prosecutes this appeal.

The undisputed evidence shows that Jane C. Wilson and Newman A. DuMont became acquainted in the fall of 1931, when she was about 23 and he 33 years of age ; that he began paying her attention, frequently calling on her at her home where she was living with her parents; that about Christmas they became engaged to be married and he so advised her parents; that about January 8, 1932, he took her to Detroit in his automobile and there visited his sister, Mrs. LaMarr, and her husband, where they stayed over the weekend. On this trip she first became intimate with him and such intimacy continued from that time. Some time after they returned from Detroit Jane’s mother noticed that Jane was going to have a baby and said that she and DuMont should get married, but DuMont put it off, claiming he did not have sufficient money. It is also undisputed that on the afternoon of July 28, 1932, DuMont took Jane and drove in his automobile to Crown Point, Indiana. DuMont was a lawyer and a member of the American Legion, and met Harold S. Barr, also a member of that organization, at Crown Point, and at DuMont’s request Barr went with Du-Mont and Jane at about five o’clock to the court house to obtain a marriage license, and there DuMont and Jane Wilson each filled out a written application for a marriage license and subscribed and swore to the same before the clerk of Lake county, circuit court of Indiana, and at that time the clerk issued to them a marriage license to which was attached a “Certificate of Marriage” to be filled out by the person performing the ceremony.

Jane testified that upon receiving the license Barr left them and they went across the street to Justice of the Peace Kemp, who married them. (We shall assume for the purpose of this decision that Jane was an incompetent witness and her testimony disregarded.) The undisputed evidence further shows that the two parties returned to Chicago on the evening of July 28, where they stayed together that night in a hotel, and the next day went to the home of Jane’s parents where he told her father and mother that he and Jane had been married the evening before at Crown Point. He went to his home and she stayed with her parents; on the next day, July 30, he took her in his automobile and they drove to visit his sister, Mrs. LaMarr, who had moved from Detroit to New York City, where they stayed for a few days, when he returned to Chicago. Jane continued to stay with his married sister and her husband in New York, where arrangements were made for Jane to be later taken to a hospital during her confinement. The baby was born October 7th, and after the usual time Jane and the baby returned to the La-Marrs, with whom they lived until about Thanksgiving, when she went with the baby to stay with relatives at Westfield, N. J. About this time DuMont made arrangements for Jane and the baby to return to Chicago and December 4 they were met at the railroad station in Chicago by Jane’s mother and sister and DuMont; he took the baby and Jane and drove them to the Chicago Nursery and Half Orphan Asylum on the north side of Chicago, where the baby was left until June 17, 1933, when she was taken by DuMont to his mother’s home. After the baby was put in the Nursery DuMont returned to his mother’s home where he continued to live, and Jane went to live with her parents.

The evidence further shows that DuMont’s mother and Jane’s mother were very friendly and visited back and forth, and that Jane often called to see the baby at Mrs. DuMont’s home, but that DuMont and Jane did not live together.

Mrs. Braddock, a social worker connected with the Half Orphan Asylum to which the baby was taken upon return to Chicago, testified that shortly before December 4th DuMont called at her office and arranged to have his infant daughter placed in the institution, stating that the mother and daughter were coming from New'York; that, “He was unable financially to establish a home for them at that time and there was a very sick boy in the home of his wife. She was going on home”; that he wanted us to take the child for at least three months, and said he and his wife would bring the child to the institution; that the baby was brought to the institution and she saw DuMont about three months afterward, and “I asked him if he had considered the people involved in this triangle as it were. I asked him if he was married and he said, ‘Yes, we were married in Crown Point and it is on the record in Crown Point, and I am going to get a divorce and have it on record in Chicago ’ ”; that he also said he had not told his mother they were married, and further that he did not love J ane and had no intention of ever living with her.

Barr testified that he first met DuMont and J ane on the evening of July 28th at- Crown Point, Indiana; that they talked on the lawn for some time before he went "with them to get the marriage license; that DuMont told him they wanted to get a marriage license and wanted no publicity; that they only wanted the license but did not want to get married; that the girl was pregnant and that she did not care to get married; and that he said he would help them get the license without publicity.

There is other evidence in the record, some witnesses testifying that DuMont told them he was married and had a child, while other witnesses gave testimony to the effect that DuMont had said he was a bachelor and was never married; but we think it unnecessary to discuss the evidence further.

The Judge, who saw and heard the witnesses testify, found that under the Indiana law the marriage was valid and the child legitimate, and it appears that he gave little or no credence to the "witness Barr. On this matter, the court said, among other things, “I somewhat doubt his (Barr’s) story that they told him they wanted to fool the parents. That doesn’t seem like a story you would tell to an utter stranger. ... I cannot say that I put such a reliance on his testimony as would illegitamize this child.” The court further stated that a section of the Indiana statute was introduced in evidence which provides: “When Marriage Valid. — No marriage shall be void or voidable for the want of license or other formality required by law, if either of the parties thereto believed it to be a legal marriage at the time.” 8 Burns Ind. Stat. Ann. 1933, ch. 3, p. 489. We think the finding of the trial Judge was the only one justified by the evidence without considering the testimony of Jane, which, as we have above stated, was inadmissible. Laurence v. Laurence, 164 Ill. 367; Estate of Maher, 210 Ill. 160; In re Petition of Saunders, 245 Ill. App. 423. Under the Indiana statute above quoted, we think the marriage was not void or voidable because we think the evidence shows each of the parties believed the marriage was legal at the time. Jane’s mother and father both testified that on July 29th, the day after DuMont and Jane returned from Crown Point, he said they had been married there the day before. He also told Mrs. Braddock he had been married at Crown Point but that he and his wife were separated and that he \Vas contemplating a divorce. We think this was sufficient under the Indiana law to make the marriage valid.

But counsel for Loretta DuMont, deceased’s mother, individually and as executrix, say that the court erred in considering the Indiana law as announced by the Supreme Court of that State, because the opinions were not introduced on the trial, citing cases which hold that laws of a foreign State must be offered in evidence in a trial in Illinois or they cannot be considered. The difficulty with this contention is that counsel overlook the fact that the law in this respect was changed in 1929 by our legislature. By that act trial courts and courts of review in this State are required to take judicial notice of “All laws of a public nature enacted by any state or territory of the United States.” Ill. Rev. Stat. 1937, ch. 51, §§ 48a and 48b, pp. 1633, 1634; Jones Ill. Stats. Ann. 107.122, 107.123; Christensen v. Blinstrup, 284 Ill. App. 163.

In Teter v. Teter, 101 Ind. 129, it was said that (p-. 133) “the declarations of the parties that they were married, the acknowledgment of the appellee as the child of the marriage bed, create a presumption of marriage too strong to be overcome by the general statement of the husband, when on the witness stand, that there was only one marriage. Onr conclusion is dictated by sound principles of public policy, and just principles of morality. . . . There was present in the minds of the parties the mutual consent which gives validity to marriages even though there is no formal solemnization. It is not the formal ceremony that creates the marital relation. . . . Persons may be punished for not obtaining licenses to marry or for not taking steps to secure a proper record of the marriage, but there may, nevertheless, be a valid marriage. The want of form, or the lack of ceremonial rites, does not impair a marriage contract, in cases where it is entered into from good motives and with an intention to contract a present marriage, and is followed by an open acknowledgment of the marital relation.

“We said when this case was last here, that little, if any, formality was required in the marriage ceremony, and we now say that no formal ceremony is necessary, and that if the motives are good, the intention to effect an immediate marriage is present, and the purpose to unite as husband and wife exists in the minds of both parties, mutual consent is all that is required.” And continuing the court said (pp. 135, 136): “This general doctrine extends so far as to sustain the validity of marriages made without complying with forms prescribed by statute, for it is held that such marriages will be sustained unless the statute expressly declares them void. ... If this be the rule where the common law doctrine prevails, there can be no doubt that it is the rule under a liberal statute like ours, which declares marriage to be a civil contract. The conclusion from these authorities is that the question whether there was or was not a marriage depends entirely upon the motives, intention and agreement of the parties, and not upon any mere matters of form or ceremony.”

In Lowrance v. Lowrance, 95 Ind. App. 345 (182 N. E. 273), the court held that under the Indiana statute above quoted, the court would not void a marriage because of the absence of legal formalities.

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

Judgment affirmed.

McSurely and Hatchett, JJ., concur.


author: Mr. Justice Matchett

text:
    Robert L. Chesnutt and Flay L. Murphy, Appellants, v. Joseph H. Schwartz et al., Appellees.
    Gen. No. 39,605.

      Opinion filed January 31, 1938.
    Rehearing denied February 14, 1938.
    Thomas D. Huff, of Chicago, for appellants; Herbert A. Huff, Thomas M. Barger, Jr., and W. H. Thomas, all of Chicago, of counsel.
    Hirsch E. Soble, of Chicago, for appellees; Norman H. Nachman, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

On November 16, 1936, the plaintiffs, Chesnutt and Murphy, who are certified public accountants, sued the defendants, Joseph and Allen Schwartz and Edward A. Cooper, who are attorneys at law. Plaintiffs filed their complaint consisting of 18 paragraphs, setting up facts by reason of which they claimed defendants owed them $2,391.42, the reasonable value of services rendered by plaintiffs as accountants at the request of defendants. An itemized statement was attached to the complaint and marked Exhibit “A.” January 8, 1937, defendants filed a motion to dismiss the suit for reasons as stated:

“1. That it appears on the face of the complaint that the alleged cause of action did not accrue within the time limited by law for the commencement of an action or suit thereon. ■

“2. That it appears on the face of the complaint that the alleged claim on which the action is founded is unenforceable under the provisions of the Statute of Frauds.

“3. That it appears on the face of the complaint that the facts set forth in said complaint do not constitute any cause of action whatever against these Defendants.”

April 20, 1937, this motion was allowed. The plaintiffs elected to stand on their complaint as amended and the court entered judgment for the defendants, from which- the plaintiffs have appealed.

From their reasons as stated, it is apparent that the motion of defendants was based upon two sections of the Civil Practice Act: First, sec. 45, Ill. Eev. Stat. 1937, ch. 110, §169, p. 2395; Jones Ill. Stats. Ann. 104.045, and sec. 48, § 172, p. 2397; Jones Ill. Stats. Ann. 104.048. Section 45 in substance provides that all objections to pleadings theretofore raised by demurrer shall thereafter be raised by motion, and that such motions shall point out specifically the defects complained óf and shall ask for such relief as the nature of the defects may make appropriate. Section 48 provides for motions to dismiss for-defects which may appear on the face of the complaint, or where the same do not appear upon the face of the complaint, the motion may be supported by affidavits. Paragraph (f) designates the statute of limitations and (h) the statute of frauds as g'round for such a motion.

The complaint in substance averred that plaintiffs were certified public accountants; that defendants were practicing lawyers in the city of Chicago during 1930; that on October 21,1929, a corporation known as the Liberty Supply and Lumber Company was adjudicated bankrupt in the United States District Court and was in the process of settlement before the referee in bankruptcy; that on November 26,1929, E. H. Johnson was appointed trustee in bankruptcy of the corporation, duly qualified and continued to act as such trustee during the years 1930, 1931 and 1932; that defendants were appointed attorneys for said trustee; that on July 29, 1930, upon application of the trustee, the referee directed him to employ plaintiffs as accountants to aid the trustee and his attorneys with reference to objections' of the trustee to the claim of the United States collector of internal revenue against the bankrupt; that on November 26,1929, Catherine Hepp, wife of J. Gr. Hepp, president of the bankrupt corporation, filed a claim against the bankrupt for $95,452.18, for money alleged to have been lent to the corporation by her; that on June 30, 1930, the trustee, throug’h defendants as his attorneys, filed an objection to the allowance and payment of the claim, and in August, 1930, for the purpose of inducing plaintiffs to undertake work thereafter referred to, the defendants, as attorneys for the trustee, “orally agreed with the plaintiffs that if the said plaintiffs would undertake the employment of making an examination and audit of the books, audits, inventories and records of the said bankrupt company for the purpose of assisting in the defense to the claim of the said Catherine Hepp, and would assist in the preparation of the trustee’s defense to said claim of the said Catherine Hepp against said bankrupt estate, and would assist on behalf of the defense in the trial of said claim before the referee in bankruptcy, then the said defendants, as such attorneys for said trustee, would file the claim of said plaintiffs for the reasonable value of such services in the court of the referee in bankruptcy and would submit same to the said referee’s court for allowance and have the same allowed at the same time that the final claim of defendants, as attorneys for said trustees in bankruptcy was filed in said bankruptcy court and would have the claim of plaintiffs for such services rendered, allowed and paid.” The complaint also avers that at the time mentioned defendants stated to plaintiffs that on account of the fact that an order had been previously made employing plaintiffs to aid the trustee with reference to the claim of the United States collector of internal revenue it would be unnecessary to secure an additional order of the referee in bankruptcy empowering the trustee to employ plaintiffs in connection with the claim of Catherine Hepp. Pursuant to the agreement and in compliance with it plaintiffs undertook the work and performed the services, prepared the necessary data, information, etc., to resist the allowance and payment of the claim of Catherine Hepp, and assisted in the trial of it by testifying and otherwise ;• that as a result of their efforts the claim of Catherine Hepp was reduced from $95,452.18 to $50,000, and reduced from the status of a preferred to that of a general claim, and on June 27,1932, was allowed as a general claim for only $50,000_; that the work, labor and services contributed by plaintiffs and their employees in compliance with the agreement, at divers times between the 11th of August, 1930, and the 14th of November, 1931, in and about the examination of the books, audits, inventories, etc., relative to the objections of the trustee to the claim of Catherine Hepp and in assisting in the preparation of the defense of the trustee to said claim, and assisting in the trial are as set forth in Exhibit “A,” which contains the nature of the services rendered, the dates and times thereof and the reasonable value of the same, which is stated to be $2,391.42.

The complaint further avers that on August 29, 1932, the final payment of fees to defendants as attorneys for the trustee was ordered by the referee, and the final fee paid to them by the trustee; that the final meeting of the creditors was held August 29,1932, and final distribution of funds belonging to the estate was made by the trustee, and Johnson, as such trustee, was discharged from further liability on January 30, 1933; that in breach of their agreement with plaintiffs, defendants wilfully failed and refused to carry out their said agreement; that they filed their own claim with the referee and had it allowed on August 29,1932, and wilfully failed and refused to file and have allowed the claim of plaintiffs, and failed and refused to have any sum allowed to plaintiffs for such services. Defendants did not inform or apprise plaintiffs that the claim of plaintiffs for such services had not been filed, and that they failed to have it allowed and paid, or that the final meeting of the creditors was about to be held and the estate closed. As a result the claim of plaintiffs was not filed or allowed or paid in accordance with the agreement between plaintiffs and defendants; that the assets of the bankrupt corporation were sufficient so that if plaintiffs ’ claim had been filed and allowed as agreed, it would have been paid and satisfied out of said assets; that if it had been filed it would have been allowed and paid in its entirety; that by reason of the breach in the contract between plaintiffs and defendants, plaintiffs sustained damages in the sum of $2,391.42. Plaintiffs were not advised by defendants that their claim against the bankrupt estate had not and would not be filed and allowed by them prior to the final closing of the estate and the final distribution of the assets, and at no time were they advised by defendants that the time had arrived for the filing of and allowance of their claim, and that they had no knowledge that the estate had been finally settled and closed until after it had been accomplished. It was then too late to file their claim in the bankruptcy court. Plaintiffs demanded judgment for $2,-391.42 with interest at the rate of 5 per cent per annum from August 21, 1932.

Plaintiffs argue for reversal that the motion to dismiss was wholly insufficient because it did not point out specifically the defects complained of. It is not necessary to discuss this point by reason of the fact that defendants in their brief rest their case solely (not upon any ground stated in their motion) but upon a ground (which they insist it is the duty of this court on its own motion to raise, although it is not suggested anywhere in the trial record, namely, that the contract set up in the complaint is hull and void as against public policy, because of its tendency to interfere with the impartial administration of justice. On this question they say correctly that questions of pleading are immaterial and cite the Supreme Court of the U. S. General Orders in Bankruptcy, No. XLV, with certain decisions construing the same, and Weil v. Neary, 278 U. S. 160, 73 L. Ed. 243. General Order No. XLV is as follows: “No auctioneer or accountant shall be employed by a receiver or trustee except upon an order of the court expressly fixing- the amount of the compensation or the rate or measure thereof. ’ ’

We are not able to agree that the cause of action set up in the complaint is in contravention of this order. The order "by its terms refers only to a receiver or trustee. Defendants are neither. It is not averred in the complaint that defendants made any agreement on behalf of the trustee or the bankruptcy court but on behalf of themselves only. Defendants, who were attorneys at the bar, agreed, according to the complaint, to undertake to have the fees for plaintiffs allowed by the bankruptcy court. Notwithstanding the order we do not see anything inherently wrong or contrary to good morals or public policy in the agreement as alleged. Nor do we perceive wherein the agreement would have any tendency to interfere in any respect with the impartial administration of justice. On the contrary, all the facts set up in the complaint show that the agreement tended very much to promote the impartial administration of justice, in that as a result of it an unjust claim was defeated. The facts of the complaint admitted by the motion are that the services rendered by the plaintiffs were very beneficial to the estate in bankruptcy and to defendants themselves as attorneys for the trustee of the estate as well as to all the creditors. True, when defendants entered into the contract they took the risk of the claim being disallowed by the court. If they were unable to secure this allowance, they and they alone were responsible. If defendants desired to make the contract binding on the trustee they could have done so by securing an order of the court authorizing the employment. They did not do this. They gave their promise, but they failed to protect the rights of the plaintiffs as agreed. Moreover, as plaintiffs point out, defendants are hardly in a position to complain on the ground that the contract was contrary to public morals. Plaintiffs were accountants. Defendants were lawyers familiar with practice in bankruptcy cases and presumably familiar with the proceedings in bankruptcy courts. Under these circumstances it can hardly be claimed that plaintiffs (assuming the contract was contrary to public policy) were in pari delicto with defendants in reference thereto. The complaint alleges facts which show a representation of these lawyer defendants that the agreement might lawfully be made. Hence, if the agreement was unlawful plaintiffs are not equally guilty with defendants. Under such circumstances plaintiffs would not be in pari delicto. Vock v. Vock, 365 Ill. 432, 435, 6 N. E. (2d) 843, 109 A. L. B. 1170. Again this contract (assuming it to be illegal) is at most malum prohibitum not malum in se. There was nothing wrong in the employment of accountants to assist counsel and the court. ' Indeed, the statute specifically authorizes such employment. It is claimed to be illegal only because the contract was not authorized in the manner prescribed by a rule of court. We think it can plausibly be argued that (the facts as set up in the complaint being presented to the court) the allowance would have been made notwithstanding the rule, to prevent the unjust enrichment of defendants and the estate through the appropriation of the services of plaintiffs. The rule is well stated in 13 C. J. 505, sec. 447: “Another distinction is sometimes made in the case of contracts which are simply unauthorized, but involve no moral turpitude and are not expressly forbidden by statute, in which case it has been held that they may be enforced if justice plainly requires it. So where the contract is merely malum prohibitum and the illegality does not arise from any elements of moral turpitude a recovery may be had of money or property parted with thereunder.”

To the same effect are Warnock v. Davis, 104 U. S. 775; Lester v. Howard Bank, 33 Md. 558; McRae v. Warmack, 135 S. W. 807, 33 L. R. A. (N. S.) 949; Herring v. Cumberland Lumber Co., 42 L. R. A. (N. S.) 64, 74 S. E. 1011; Morville v. American Society, 123 Mass. 129, 25 Am. Rep. 40; Harris v. Runnels, 53 U. S. 79, 84; Atwater v. Sellers, 239 N. W. 629; Pyle v. Kernan, 36 P. (2d) 580-583. Nor is the contention of defendants sustained by Weil v. Neary, 278 U. S. 160. In that case a lawyer who was counsel for many of the creditors, representing more than 90 per cent of them, became counsel for the trustee and asked to have compensation for his services allowed, although he had become such counsel without the knowledge of the court. No argument is necessary to disclose the difference between an attorney representing two conflicting interests at the same time and the case of accountants who perform services for one party to whom they are loyal. The cases are entirely unlike.

The court erred in sustaining the motion and dismissing the suit, and for that error the judgment is reversed and the cause remanded for proceedings consistent with this opinion.

Reversed and remanded.

O’Connor, P. J., and McSurely, J., concur.


text:
    Houghton Mifflin Company, Appellee, v. Continental Illinois National Bank and Trust Company of Chicago, Appellant.
    Gen. No. 39,748.

      Opinion filed January 31, 1938.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellant; Carl Meyer, Frederic Burnham, David F. Rosenthal, and Frank D. Mayer, all of Chicago, of counsel.

      Nelson, Slater & Boodell, of Chicago, for appellee; Drennen J. Slater, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This case involves a construction of section 9, subd. 3, of the Negotiable Instruments Law. (Ill. Rev. Stat. 1937, ch. 98, §29, p. 2130; Jones Ill. Stats. Ann. 89.029.)

The material facts are not in dispute. Plaintiff corporation for many years has been engaged in the business of publishing books in Chicago and in connection with its business has carried a checking account with the defendant bank. Plaintiff’s bills have been paid by checks drawn on this account, and the salesmen employed by it from time to time have been paid by checks drawn thereon. This suit is based upon the payment by defendant bank of 20 checks for $100 each, which plaintiff contends were paid upon forged indorsements of the respective payees and wrongfully charged to its account. These checks were drawn and executed by three of plaintiff’s agents, Prentice F. Lane, C. H. Pierce and Edward T. Allen, who were specially authorized to execute checks. All of the checks, however, were prepared by Elizabeth Scott, a bookkeeper employed by plaintiff, whose duty it was to keep records of financial transactions of plaintiff at its Chicago office, to receive bills payable and to make out checks in payment thereof and in payment of salaries and commissions of salesmen. She was not authorized to sign checks in behalf of the plaintiff. Each of these checks was payable by its terms to the order of a particular salesman who was in the employ of plaintiff, and the checks were executed by Pierce, Allen and Lane upon representations made to them by Elizabeth Scott that the salesmen to whose respective orders the checks were drawn were entitled to be paid the sums indicated by the checks. After the execution of the checks they were in each case delivered to Elizabeth Scott to be delivered in the usual course of business by her to the respective payees named therein. She did not do this, but on the contrary first indorsed on each of the checks the name of the payee, then her own, then cashed the checks at defendant bank, appropriated the proceeds to her own use and has since disappeared. As a matter of fact, at the time when the checks were drawn no one of the payees was entitled to the amount for which any check to his order was drawn. The indorsement of Elizabeth Scott was without authority and has not been approved or ratified by any of the payees. The total amount of the checks was $1,400, paid by defendant bank and charged to plaintiff’s account. Plaintiff’s suit was for recovery of the sum thus charged to it, and the trial court, being of the opinion on the undisputed facts that the bank was liable, made a finding in favor of plaintiff and entered judgment against the bank, from which it appeals.

The theory of defendant bank is that under section 9 of the Negotiable Instrument Law these checks were payable to bearer, and that the bank was justified in paying them upon presentation. Subd. 3 of section 9 of the Negotiable Instrument Law, as originally drawn, provided that an instrument was payable to bearer “when it is payable to the order of a fictitious or non-existing person and such fact was known to the person making it so payable.” Brannon’s Negotiable Instrument Law, Anno., 4th ed., p. 79.

When the Uniform Act was adopted in this State the legislature substituted for the original provision of this subsection the following: “when it is payable to the order of a person known by the drawer or maker to be fictitious or non-existent or of a living person not intended to have any interest in it.” By act approved July 2, 1931 (Laws of 1931, p. 679, see Ill. Rev. Stat. 1937, eh. 98, § 29, subd. 3, p. 2130; Jones Ill. Stats. Ann. 89.029), this paragraph was amended to read as follows:

“When it is payable to the order of a fictitious or non-existent or living person not intended to have any interest in it and such fact was known to the person making it so payable, or known to Ms employee or other agent who supplies the name of such payee.”

The construction of this paragraph prior to the amendment was stated by this court in United States Cold Storage Co. v. Central Mfg. District Bank, 251 Ill. App. 279, and by the Supreme Court in the same case in 343 Ill. 503. The Supreme Court (under facts not distinguishable from the facts of this case) reviewing the authorities, held the bank was liable. The opinion puts the decision on the ground that the general rule that notice to an agent (while acting for his principal) of facts affecting the character of the transaction is constructive notice to the principal, is subject to an exception that it does not apply when the agent is engaged in committing an independent fraudulent act on his own account and the facts to be imputed relate to this fraudulent act.

The cases construing the section before its amendment are collected and discussed in 27 Ill. Law Review, pp. 564, 565, and 4 University of Chicago Law Review, pp. 670, 672. Bankers urged the law thus announced was unjust and there appears in the record a portion of a pamphlet entitled, “Program of State Legislation Recommended by American Bankers Association, corrected to Jan. 1, 1932,” indicating their attitude. The statement is by Mr. Patón, counsel for the association. After giving the exact section 9 as amended by the Illinois Legislature in July, 1931, he says:

“This amendment drafted in the office of the general counsel and approved by the Association, enlarges the definition of bearer paper by including instruments payable to fictitious persons, where the employee or other agent has knowledge of the fiction. Under the existing definition the drawer of a check having no knowledge of the fiction cannot be held responsible for the act of his agent who supplies the name of the fictitious payee. The person mistakenly signing such check believes it is payable to a real person and expects it to be transferred by genuine endorsement. In point of fact, transfer by genuine endorsement is impossible and this places an unfair burden upon the paying’ bank or a bona fide holder.

“The purpose of the amendment is to place the responsibility upon the drawer of an instrument for the acts of his agent who names a fictitious payee without the drawer’s knowledge. This is accomplished by treating such instrument as bearer paper transferable by delivery. ’ ’

The bank here contends that such was the effect of the amendment. They say, citing authorities such as Schoellkopf v. DeVry, 366 Ill. 39, 44, that in seeking the intent of the legislature the courts will look at the evil to be remedied and the object to be attained; that in construing the statute the court may properly refer to the views expressed by individual members of the legislature when the bill was under consideration in order to get the history behind it and to ascertain the wrong which it was intended to remedy. They cite Moran v. Bowley, 347 Ill. 148, 154,155; Moore Statutes and Statutory Construction, vol. 1, Fed. Stats. Anno., 2d ed., p. 63; Holy Trinity Church v. United States, 143 U. S. 457-463; and point out that the very fact that a change was made in the phraseology of the law by an amendment creates the presumption that it was intended to change the law as it formerly existed. United States v. Bashaw, 50 Fed. 749 (8 C. C. A. 1892); Watkins v. Dunbar, 232 Ill. App. 1, 10. More over, it is urged that statutes are to he so construed as to give effect to every word, clause and sentence. Ruda v. Industrial Board, 283 Ill. 550-553. Defendant quotes the language used by the author of the amendment in explanation of the bill for amendment to the legislature, in substance to the effect that the law as stated in United States Cold Storage Co. v. Central Mfg. District Bank was unjust, and that it was the purpose of the amendment to change it. We think these rules of construction applicable and controlling. The amendment has not been construed by our Supreme Court, but a court of New York in the case of Swift & Co., Inc. v. Chemical Bank & Trust Co., 299 N. Y. S. 105, has held this was the effect of the amendment. The opinion by Justice Pécora says :

“The question presented on this motion for summary judgment is whether the rights of the parties are governed by the law of this state or by the law of Illinois. If our laws apply, the plaintiff is entitled to judgment, the check in question having been drawn in Illinois by a dishonest employee of the plaintiff, on the defendant, Chemical Bank & Trust Company in New York, to the order of a fictitious payee, not known to the plaintiff to be such. On the other hand, if the Illinois law controls, the plaintiff is not entitled to recover in view of the fact that the statutes of that state provide that an instrument is payable to bearer ‘when it is payable to the order of a fictitious or non-existent or living person not intended to have any interest in it, and such fact was known to the person making it so payable, or known to his employee or other agent who supplies the name of such payee.’ . . . Accordingly the court holds that the question whether the check constituted a negotiable instrument payable to bearer must be determined by the laws of Illinois, where the check was drawn. As the check under the Illinois statute became a bearer instrument, the drawer has no cause of action against the drawee bank which honored the same.”

Plaintiff in its brief points out that the court will not read into an act something that is not there, to which are cited People v. Patten, 338 Ill. 385, 170 N. E. 280; First Nat’l Bank of Palatine v. Hahnemann Institutions, 356 Ill. 366,190 N. E. 707; Barnes v. City of Chicago, 323 Ill. 203, 153 N. E. 821; City of Decatur v. German, 310 Ill. 591, 142 N. E. 252, cases which as applied to the facts of each correctly state rules of law which are neither applicable nor controlling here. Plaintiff states its theory to be: “That although the 1931 amendment to Section 9 of the Negotiable Instrument Act changed the law in the case of checks made payable to fictitious or non-existing payees, nevertheless it did not make a change with respect to checks payable to payees not intended to have an interest in the checks. In such case it is still the intention of the duly authorized officers which controls and the dishonesty of the defrauding clerk does not supersede the intention of the company’s duly authorized agents.”

There is no language in the statute from which such limitation on its meaning can be inferred. This construction is clearly contrary to the purpose for which the amendment was enacted. It was suggested by the trial judge that if the amendment had been given the construction now urged by defendant it would not have been passed by the legislature. This is only a matter of opinion and at that on a thing with which the courts have nothing to do. Our function is to construe the law as it is written, not to make it. Its wisdom or unwisdom is not for the determination of the courts. We hold as a matter of law the plaintiff was not entitled to recover, and the judgment is-therefore reversed without remanding.

Reversed.

O’Connor, P. J., and MoSurely, J., concur.


text:
    John H. Lawson, Appellee, v. Nishan Bartev Jorjorian, Appellant.
    Gen. No. 39,759.

      Opinion filed January 31, 1938.
    Donald M. Eoche and Abraham Define, both of Chicago, for appellant.
    Paul F. Kinnare, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

On May 29, 1935, in the village of Wilmette at the intersection of Greenwood avenue and 16th street, the Packard automobile of plaintiff was struck by another Packard driven by the defendant, Jorjorian. Plaintiff’s automobile at the time in question was being driven by his wife, Mrs. Dawson, and a friend, Mrs. Harbison, sat in the seat with her at the right-hand side. Plaintiff brought suit before a justice of the peace for damage sustained by the automobile and obtained judgment. Defendant appealed to the circuit court where the cause was again tried by the court without a jury. At the conclusion of all the evidence there was a finding for plaintiff for $175 with judgment thereon, and defendant brings this further appeal to this court.

Greenwood avenue in the village of Wilmette is a public east and west highway; it is intercepted by 16th street, another public highway running north and south. At this particular intersection, however, 16th street jogs to the west, as the evidence shows, about 17 feet. The land about the intersection was vacant and unoccupied at the time in question; there was one house on the east side of 16th street about 100 feet south of the intersection. The northeast corner, of the intersection was covered by weeds, which the evidence indicates were from 4 to 5 feet in height. Both streets at this place are approximately 22 feet wide. It was a clear day and the street was dry. Mrs. Lawson, driving plaintiff’s car, turned from Green Bay road into Greenwood avenue and proceeded in a westerly direction. She says that as she approached the intersection she looked to the north but did not see any traffic coming. Mrs. Lawson and Mrs. Harbison both testify that the Lawson car was being driven at a speed of from 20 to 25 miles an hour. When Mrs. Lawson had driven the car more than half way across the intersection defendant, driving his Packard at an undetermined speed, which Mrs. Harbison says was greater than that at which the Lawson car was going, hit the Lawson car, striking the right-front fender, scraping the running board and badly damaging the body of the car. The impact drove the Lawson car about 50 feet south, where it stopped. Just as the cars were about to collide Mrs. Lawson turned her car toward the left and the defendant swung his to the right in order to avert the collision. No occupant of either car was injured but the automobiles were badly damaged. It is not claimed that the damages are excessive.

Defendant testified that when he approached the intersection he first_looked to the right to see if there was any traffic; he did not see any; he looked to his left, and as he says, was “just going into the intersection and I had crossed over the north curb of Greenwood avenue when I saw the other car coming to my left there.” He says it was then too late for bim to do much, so he swung his car to the right while the car coming from the east also turned to try to avoid him, and the front right fender on the Lawson car struck right into his car and the impact of it swung his car around and brought him across the southwest curb. He got out of the car and met Mrs. Lawson halfway between the two cars; he asked if she was hurt and she asked if he was hurt; it appeared that everybody was all right; they exchanged their license numbers, names and addresses; by that time people had begun to gather around and he did not see Mrs. Lawson after that. A garage company came and took Ms car away. Mrs. Lawson testified (and defendant does not deny) that she said to defendant, “ ‘I did not see you coming.’ I said, ‘Didn’t you see me?’ He said, ‘No.’ And I asked him why. Well, he said just before he reached the intersection his door opened, his front, right front door, and he leaned over to close his door and he did not see me and I did not see him. ’ ’

On cross-examination defendant was asked what distance he was north of the intersection when he opened the left-front door of Ms car. His attorney interposed the statement that the testimony was his right-front door was open. The attorney for plaintiff then said: “Q. You heard the statement here made about you having opened and closed the door. Did you do that? A. Yes, I did. Q. Where were you from the intersection when that happened? A. I was, oh, about I should judge, about hálf way the distance from here across the street. I would say about 75 feet or so. Q. Did that have anything at all to do with your- The Court: Don’t ask him that. Mr. Le-pine: Q. When tMs occurred, you closed the door before you reached the intersection? A. Oh, yes. Q. At the time you reached the intersection were you looMng at your door? A. No, sir, I was not.” Defendant was asked: “Q. Which door of the car came open before you reached the intersection? A. The right front. Q. Did you open it or did it come open itself? A. No, it was not — it was not open, in fact. You know there is a double latch on the Packard door and just the one latch was open, that is all. Q. What did you do then? A. I reached over and shut it. Q. Do you remember having a conversation with Mrs. Lawson after the accident; do you remember her saying, ‘Why didn’t you see me?’ and do you remember what you said? A. No, I am, sorry, I don’t. Q. Do you remember when this case was tried before a J. P. and you were on the stand that I asked you, ‘Did you tell Mrs. Lawson after the accident that you did not see her because your right front door came open?’ and you said, ‘Yes’? Do you remember that question being asked and that answer being made? A. No; I don’t remember.”

Defendant insists that the judgment should be reversed because as a matter of law the driver of plaintiff’s car was guilty of contributory negligence in failing to observe the approach of defendant’s car and in failing to yield the right of way to the defendant. It is argued that although Mrs. Lawson testified that she looked to her right before proceeding across the intersection, it is evident under all the circumstances that she did not look because if she had looked she must have seen, and cases such as Greenwald v. Baltimore & O. R. Co., 332 Ill. 627-632 are cited to the effect that law will not give credence to testimony that one looked but did not see, when it is perfectly apparent that if the person had looked he must have seen. As to the contention of defendant that the driver of plaintiff’s car was guilty of contributory negligence in failing to yield the right of way, defendant cites Partridge v. Eberstein, 225 Ill. App. 209, and McCarthy v. Fadin, 236 Ill. App. 300, while plaintiff relies upon Heidler Hardwood Lumber Co. v. Wilson & Bennett Mfg. Co., 243 Ill. App. 89, and Ward v. Clark, 232 N. Y. 195, with other cases. Section 33 of the .motor vehicle law provides in substance that persons * traveling upon the public, highways shall give the right-of way to other vehicles approaching along intersecting highways from the right, and that such persons shall have the right of way over those approaching from the left. This court is of the opinion that under the circumstances disclosed by the evidence, the driver of plaintiff Lawson’s car was guilty of contributory negligence in failing to yield defendant the right of way, and that plaintiff therefore cannot recover. The cars were traveling at about the same rate of speed and were practically equidistant from the point of collision. Ward v. Clark, supra. Plaintiff, however, argues that Mrs. Lawson, the driver, was a mere bailee of the automobile of her husband, and that he therefore may not be charged with her contributory negligence. A bailor, says plaintiff, cannot be held responsible for the negligence of his bailee in the absence of proof of the relationship of master and servant or principal and agent between the owner and the bailee. Mosby v. Kimball, 345 Ill. 420; Arkin v. Page, 287 111. 420; White v. Seitz, 342 Ill. 266, and Andersen v. Byrnes, 344 Ill. 240, are cited. This contention is presented for the first time in this court. In the trial court the agency of Mrs. Lawson for her husband was assumed. That relationship is presumed in the absence of evidence to the contrary. Bosco v. Boston Store of Chicago, 195 Ill. App. 133; Robeson v. Greyhound Lines, Inc., 257 Ill. App. 278. Moreover, plaintiff cannot try his case on one theory and adopt another on appeal. Ziolkowski v. Continental Casualty Co., 263 Ill. App. 31; Remington v. Krenn & Dato, Inc., 289 Ill. App. 548; Hayward Co. v. Lundoff-Bicknell Co., 365 Ill. 537; National Lock Co. v. Swords Co., 290 Ill. App. 42.

It is further contended that the judgment of the trial court will not be disturbed because, as it is said, it does not appear from the certificate of the trial judge that the record contains all the evidence offered at the trial. Plaintiff cites Emerson v. Clark, 2 Scam. 489; Cogshall v. Beesley, 76 Ill. 445; Marske v. Willard, 68 Ill. App. 83; Culliner v. Nash, 76 Ill. 515; Legnard v. Rhoades, 156 Ill. 431; and Estate of Casner v. Stafford, 86 Ill. App. 469. The contention cannot prevail on this record. The certificate itself does not state that it contains all the evidence, but on the last page of the proceedings, which the certificate certifies to be correct, the statement is made, “which was all of the testimony offered, received or adduced and all of the proceedings had at the trial of the above entitled case.” This is sufficient. People v. Clark, 298 Ill. 170; Sutton & Routt v. Roard of Education, 259 Ill. App. 193.

For the reasons indicated the judgment is reversed.

Reversed.

O’Connor, P. J., and McSurely, J., concur.