text:
    Lillie L. Sturges, appellee, v. Tina Huster et al., appellants.
    Gen. No. 7,435.
    Foreclosure suit. Decree for foreclosure. Appeal from the Circuit Court of Du Page county; the Hon. William J. Fulton, Judge, presiding. Heard in this court at the October term, 1924.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed April 25, 1925.
    Rehearing denied October 6, 1925.
    Beach & Beach, for appellants.
    Bulkley, More & Tallmadge, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Jones

license: Public Domain

text:
    First National Bank of Secor, Illinois, appellant, v. Sylvester Stephens et al., appellees.
    Gen. No. 7,451.
    Garnishee suit. Judgment discharging garnishee. Appeal from the Circuit Court of Woodford county; the Hon. Stevens R. Baker, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed April 25, 1925.
    Orman Ridgely, for appellant.
    Wallace J. Black, for appellees; Clyde M. West, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


author: Mr. Justice Partlow

text:
    The People of the State of Illinois, defendant in error, v. Mike Minto and John Rose, plaintiffs in error.
    Gen. No. 7,381.
    Prosecution for violation of liquor law. Defendants convicted. Error to the County Court of Du Page county; the Hon. S. L. Rathje, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed April 25, 1925.
    Rice & De Bartolo, for plaintiffs in error; Joseph B. Lawler, of counsel.
    C. W. Reed, State’s Attorney, for defendant in error; W. G. Knoch, of counsel.
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Fred Weinschenker, plaintiff in error.
    Gen. No. 7,387.
    Prosecution for violation of prohibition law. Defendant convicted. Error to the Circuit Court of McHenry county; the Hon. Osear E. Heard, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded.
    Opinion filed April 25, 1925.
    Sullivan & Ward, for plaintiff in error; Martin M. Ward and George D. Sullivan, of counsel.
    William L. Pierce, Special State’s Attorney, for defendant in error; David R. Joslyn, Assistant State’s Attorney, of counsel.
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    A. W. Duckworth et al., appellees, v. Jesse Tobey, trading as Tobey Grain Company, appellant.
    Gen. No. 7,430.
    Suit to recover rent. Judgment for plaintiffs. Appeal from the County Court of Kankakee county; the Hon. John H. Gillan, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed May 20, 1925.

      L. B. Bratton and H. H. Whittemore, for appellant.
    C. M. Clay Buntain and T. R. Johnston, for appellees.
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Charles Morris, plaintiff in error.
    Gen. No. 7,449.
    Prosecution for violation of liquor law. Defendant convicted. Error to the County Court of Bureau county; the Hon. James R. Pritchard, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and cause remanded.
    Opinion filed May 20, 1925.
    Rehearing denied September 26, 1925.
    Joseph T. Skinner and J. L. Spaulding, for plaintiff in error.
    Carey R. Johnson, for defendant in error.
   Mr. Justice Partlow

delivered the opinion of the court.


author: Mr. Justice Jett

text:
    Anthony Dudas, appellant, v. W. H. Morlock, appellee.
    Gen. No. 7,429.
    Action for personal injury and for damage to automobile in collision with defendant’s car. Judgment for defendant. Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded.
    Opinion filed May 22, 1925.
    Fred B. Shearer and Harvey Gunsul, for appellant; Charles B. Dickerson, of counsel.
    Hugh O’Neill, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    A. Provenzano, appellee, v. Rock Falls Manufacturing Company, appellant.
    Gen. No. 7,480.
    Appeal from the City Court of Sterling; the Hon. I. L. Weaver, Judge, presiding. Heard in this court at the April term, 1925. Reversed and remanded on opinion in Lurie v. Rode Falls Mfg. Co., 237 Ill. App. 334.
    Opinion filed June 1, 1925.
    Carl E. Sheldon, for appellant.
    J. J. Ludens, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Peter Troy et al. Martin Chiado, plaintiff in error.
    Gen. No. 7,386.
    Prosecution for violation of liquor law. Defendant convicted. Error to the County Court of Bureau county; the Hon. James R. Pritchard, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed June 1, 1925.
    Paul D. Perona, for plaintiff in error.
    Carey R. Johnson, for defendant in error.
   Mr. Justice Partlow

delivered the opinion of the court.


author: Mir. Justice Partlow

text:
    George Woomer, appellee, v. Martin Dirksen, appellant.
    Gen. No. 7,474.
    Action to recover damage to automobile. Judgment for plaintiff. Appeal from the Circuit Court of Ogle county; the Hon. William J. Emerson, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed June 1, 1925.

      George D. O’Brien, for appellant.
    Wirick & Wirick, for appellee.
   Mir. Justice Partlow

delivered the opinion of the court.


text:
    Herman P. Baker, appellant, v. Bert H. Minks, appellee.
    Gen. No. 7,498.
    Action to recover value of electric light fixtures removed by-tenant. Judgment for defendant. Appeal from the Circuit Court of Henry county; the Hon. Neis A. Larson, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed June 8, 1925.
    Rehearing denied and opinion slightly modified September 26, 1925.
    James N. Cummings, for appellant.
    Andrews & O’Connor, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    Louis M. Korea, appellee, v. Alliance Insurance Company of Philadelphia, Pennsylvania, appellant.
    Gen. No. 7,508.
    Action on insurance policy for theft of automobile. Judgment for plaintiff. Appeal from the County Court of Peoria county; the Hon. Glen J. Cameron, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed June 15, 1925.
    John E. Cassidy and Charles V. O ’Hern, for appellant.
    P. E. Mann and George B. Sucher, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    Joseph G. Rigg, administrator of the estate of Raymond G. Rigg, deceased, appellee, v. James Callahan and John Callahan, appellants.
    Gen. No. 7,370.
    Action to recover for wrongful death in automobile and truck collision. Judgment for plaintiff. Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1924.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 27, 1925.
    Rehearing denied and opinion slightly modified October 23, 1925.
    E. M. Runyard, for appellants.
    Sidney H. Block and George W. Field, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Frank K. Duzenbery, administrator of the estate of Roy V. Duzenbery, deceased, appellee, v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, appellant.
    Gen. No. 7,471.
    Action to recover damages for wrongful death. Judgment for plaintiff. Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed July 11, 1925.
    Free P. Morris and Roscoe O. South, for appellant; L. J. Hackney and H. N. Quigley, of counsel.
    A. F. Goodyear and Robert F. Goodyear, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    David R. Kershaw, appellee, v. Illinois Power & Light Corporation, appellant.
    Gen. No. 7,491.
    Action for personal injuries sustained in collision between automobile and street car. Judgment for plaintiff. Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 11, 1925.
    Rehearing denied September 26, 1925.
    Hunter, Page & Kavanagh, for appellant.
    Joseph A. Weil and Joseph F. Bartley, for appellee; Weil, Bartley & Weil, of counsel.
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    School Directors of District No. 89, County of Winnebago and State of Illinois et al., appellants, v. Trustees of Schools of Township No. 26, North, Range No. 10, East of the Fourth Principal Meridian et al., appellees.
    Gen. No. 7,392.
    Mandamus to compel school trustees to set off credits on attachment of school districts. Judgment for defendants. Appeal from the Circuit Court of Winnebago county; the Hon. E. D. Reynolds, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded.
    Opinion filed July 14, 1925.
    Hyer, Gill & Rang, for appellants.
    Welsh & Welsh and Garrett, Maynard & Hull, for appellees.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Emma L. Sharpe, plaintiff in error, v. Illinois Bankers Life Association of Monmouth, Illinois, defendant in error.
    Gen. No. 7,393.
    Action on insurance certificates. Judgment for defendant. Error to the Circuit Court of Woodford county; the Hon. Stevens R. Baker, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed July 14, 1925.
    Orman Ridgely, for plaintiff in error.
    W. H. Foster and J. W. Clendenin, for defendant in error; Robert M. Work, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Moses Fleet, appellant, v. Illinois Central Railroad Company, appellee.
    Gen. No. 7,416.
    Action for personal injuries sustained in cutting railroad rail. Judgment for defendant. Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Seim, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded.
    Opinion filed July 14, 1925.
    Rehearing denied October 6, 1925.
    Frank J. Burns and James T. Burns, for appellant.
    W. R. Hunter and Eva L. Minor, for appellee; John G. Drennan, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Charles R. Withrow, appellee, v. John N. Miller, appellant.
    Gen. No. 7,432.
    Action on promissory note. Judgment for plaintiff. Appeal from the Circuit Court of Henry county; the Hon. William T. Church, , Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed July 14, 1925.
    Harry E. Brown, for appellant; Arthur G. Higgs, of counsel.
    Harry H. Waite, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Clara Buckley, appellee, v. F. W. Graham et al. F. W. Graham, appellant.
    Gen. No. 7,476.
    Action on promissory note. Motion to open judgment by confession and for leave to plead. Motion overruled. Appeal from the Circuit Court of Grundy county; the Hon. S. 0. Stough, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded -with directions.
    Opinion filed July 14, 1925.
    Cornelius Reardon, for appellant.
    George W. Huston, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Jerry Stefek, plaintiff in error.
    Gen. No. 7,455.
    Prosecution for violation of liquor law. Defendant convicted. Error to the Circuit Court of McHenry county; the Hon. Earl D. Reynolds, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed July 14, 1925.
    Martin M. Ward and George D. Sullivan, for plaintiff in error.
    Oscar E. Carlstrom, Attorney General, and Alford H. Pouse, State’s Attorney, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Musette Goff, administratrix of the estate of Henry F. Goff, deceased, appellant, v. Chicago, Burlington & Quincy Railroad Company, appellee.
    Gen. No. 7,505.
    Action for wrongful death. Judgment for defendant. Appeal from the Circuit Court of Knox county; the Hon. Walter C. Prank, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed July 14, 1925.
    Roy M. Marsh, R. C. Rice and John H. Lewis, Jr., for appellant.
    J. A. Connell and Williams, Lawrence, Green & Gale, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Frank Meyers, appellant, v. Delima Brouillette and Kankakee Building & Loan Association. Delima Brouillette, appellee.
    Gen. No. 7,483.
    Bill to foreclose mechanic’s lien. Bill dismissed for want of equity. Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Seim, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed July 20, 1925.
    Miller & Streeter, for appellant.
    John A. Mayhew, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    The La Salle County Electric Company, appellant, v. George McLean and Mrs. George McLean, alias Alice McLean, appellees.
    Gen. No. 7,500.
    Bill for an injunction, dismissed for want of equity. Appeal from • the Circuit Court of Putnam county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed July 20, 1925.
    Rehearing denied September 26, 1925.
    Harry E. Brown and Hunt, Montgomery & Kelly, for appellant; Arthur Gr. Higgs, of counsel.
    James E. Taylor and Wallace J. Black, for appellees; Clyde M. West, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Fred W. Sneed and Burt Sneed, trading as Sneed Brothers, appellants, v. Leonard Kroff, appellee.
    Gen. No. 7,470.
    Action on promissory note. Judgment for defendant. Appeal from the City Court of Sterling; the Hon. I. L. Weaver, Judge, presiding. Heard in this court at the April term, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 22, 1925.
    Rehearing denied September 26, 1925.
    J. J. Ludens, for appellants. Carl E. Sheldon, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Harry Zelden, appellee, v. North British & Mercantile Insurance Company, appellant.
    Gen. No. 7,509.
    Action on fire insurance policy. Judgment for plaintiff. Appeal from the Circuit Court of Woodford county; the Hon. Stevens R. Baker, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed July 22, 1925.
    John E. Cassidy and Edward Riley, for appellant.
    Orman Ridgely, for appellee; Irving G. Soffran, of counsel.
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    Harry Zelden, appellee, v. Commercial Union Assurance Company, appellant.
    Gen. No. 7,510.
    Action on fire insurance policy. Judgment for defendant. Appeal from the Circuit Court of Woodford county; the Hon. Stevens' R. Baker, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed July 22, 1925.
    John E. Cassidy and Edward Riley, for appellant.
    Orman Ridgely, for appellee; Irving G. Soffran, of counsel.
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    D. F. Lavoie, appellant, v. C. F. Holliday, appellee, D. F. Lavoie, appellant, v. Fred Gieseking, appellee.
    Gen. No. 7,473.
    Action on promissory notes. Judgment for defendants. Appeal from the Circuit Court of Kankakee county the Hon. Arthur W. De Seim, Judge, presiding. Heard in this court at the April term, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 27, 1925.
    Rehearing denied September 26, 1925.
    H. H. Whittemore, for appellant.
    C. M. Clay Buntain and John A. Mayhew, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Mearl Shannon, a minor, by his guardian Arthur Shannon, appellee, v. William R. Nightingale and John P. Pallissard, appellants.
    Gen. No. 7,494.
    Action for personal injuries sustained in collision of automobile with motor truck. Judgment for plaintiff. Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed July 27, 1925.
    Pallissard & Benjamin, for appellants.
    Free P. Morris and Roscoe C. South, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    Loretta Thompson, appellee, v. Lloyd M. Stevens, appellant.
    Gen. No. 7,497.
    Action against dentist for malpractice. Judgment for plaintiff. Appeal from the Circuit Court of Will county; the Hon. Frederick A. Hill, Judge, presiding. Heard in this court at the April term, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 27, 1925.
    Rehearing denied September 26, 1925.
    John W. D’Arcy and Edward W. Rawlins, for appellant.
    Snapp, Heise & Snapp, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    Alfred Totel, appellee, v. W. C. Vittum, appellant.
    Gen. No. 7,357.
    Attachment suit. Judgment for plaintiff. Appeal from the Circuit Court of LaSalle county; the Hon. Joe A. Davies, Judge, presiding. Heard in this court at the April term, 1924.
    Reversed and remanded.
    Opinion filed August 3, 1925.
    Henry M. Kelly and McDougall & Chapman, for appellant.
    James J. Conway and A. E. Butters, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Jacob Heitz, plaintiff in error.
    Gen. No. 7,448.
    Prosecution for violation of liquor law. Defendant convicted. Error to the County Court of Bureau county; the Hon. James R. Pritchard, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed August 3, 1925.
    Josef T. Skinner and J. L. Spaulding, for plaintiff in error.
    Carey R. Johnson, for defendant in error.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. W. William Farris, plaintiff in error.
    Gen. No. 7,467.
    Prosecution for violation of liquor law. Defendant convicted. Error to the Circuit Court of Lake county; the Hon. Perry L. Persons, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed August 3, 1925.
    E. V. Orvis, for plaintiff in error.
    Ashebl V. Smith, State’s Attorney, for defendant in error; Sidney H. Block and Albert L. Hall, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    James A. Rourke, appellant, v. Harrison Fossler, appellee.
    Gen. No. 7,472.
    Bill to establish mechanic’s lien. Dismissed for want of equity. Appeal from the Circuit Court of Winnebago county; the Hon. Earl

      D. Reynolds, Judge, presiding. Heard in this court at the April term, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed August 3, 1925.
    Fisher, North, Linscott & Gibboney, for appellant.
    Roy F. Hall, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Kate Williams, appellee, v. Fernandus Jacobs, appellant.
    Gen. No. 7,481.
    Action on promissory note. Judgment for plaintiff. Apppeal from the City Court of Sterling; the Hon. I. L. Weaver, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed August 3, 1925.
    Rehearing denied October 6, 1925.
    Van Sant & Besse, for appellant.
    Robert L. Bracken and John M. Stager, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    A. W. Peterson, appellant, v. A. E. Freburg, appellee.
    Gen. No. 7,504.
    Action on promissory notes. Judgment for defendant. Appeal from the Circuit Court of Winnebago county; the Hon. Edward D. Shurtleff, Judge, presiding. Heard in this court at the April term, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed August 12, 1925.
    Roy F. Hall, for appellant.
    Garrett, Maynard & Fell, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Rose Smith, appellant, v. William Trager, appellee.
    Gen. No. 7,511.
    Action for personal injuries sustained in collision with automobile. Judgment for defendant. Appeal from the Circuit Court of Peoria county; the Hon. Charles V. Miles, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed August 12, 1925.
    Shurtleff & Niehaus, for appellant.
    Daily, Miller, McCormick & Radley, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Elmer Saylor et al., plaintiffs in error.
    Gen. No. 7,408.
    Prosecution for mayhem. Defendants convicted. Error to the Circuit Court of Rock Island county; the Hon. William T. Church, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed August 20, 1925.
    Kenworthy, Dietz, Shallberg, Harper & Sinnett, for plaintiffs in error; Cyrus E. Dietz and J. J. Neiger, of counsel.
    Oscar Carlstrom, Benjamin S. Bell and James D. Bruner, for defendant in error; Edward L. Eagle, of counsel
   Mr. Justice Partlow

delivered the opinion of the court.


text:
    State Bank of Seaton, appellant, v. R. L. Bryans, appellee.
    Gen. No. 7,492.
    Action on promissory note. Judgment for defendant. Appeal from the Circuit Court of Henderson county; the Hon. Willis 3?. Graham, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed August 24, 1925.
    Rehearing denied October 6, 1925.
    James A. Allen and Hartzell & Werts, for appellant.
    L. H. Hanna and Scofield & Bell, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    W. C. Frieling, for use of Henry Dummer, appellant, v. Frank P. Emling et al., appellees.
    Gen. No. 7,477.
    Motion to vacate judgment. Order for vacation. Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Seim, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed August 29, 1925.
    H. H. Whittemore, for appellant.
    J. Harvey Robillard, for appellees.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Johnson Brothers, appellees, v. Herman Vierke, appellant.
    Gen. No. 7,495.
    Replevin. Judgment for plaintiffs. Appeal from the Circuit Court of Kane county; the Hon. John K. Newhall, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed September 14, 1925.
    Harry G. Hempstead and Roy R. Phillips, for appellant.
    Harvey Gunsul, for appellees; Olney Allen, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Isaac Thomason, appellee, v. Central Illinois Public Service Company, appellant.
    Gen. No. 7,489.
    Action for personal injuries sustained in runaway caused by drop of cross-arm from electric wire pole. Judgment for plaintiff. Appeal from the Circuit of Iroquois county; the Hon. Prank L. Hooper, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed September 29, 1925.
    Vause & Kiger, for appellant; A. P. Goodyear, of counsel.
    Dyer & Dyer and J. W. Kern, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Frank E. Johnson, administrator of the estate of John Emmert Norman, deceased, appellee, v. City of Rockford, appellant.
    Gen. No. 7,515.
    Action for negligence in failing to maintain barrier on sidewalk. Judgment for plaintiff. Appeal from the Circuit Court of Winnebago county; the Hon. Bari D. Reynolds, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed September 29, 1925.
    Rehearing denied January 12, 1926.
    David D. Madden and George T. Liddell, for appellant.
    Roy F. Hall, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Tillman Anderson, appellee, v. Thomas T. Fletcher, appellant.
    Gen. No. 7,367.
    Action for malicious prosecution. Judgment for plaintiff. Appeal from the Circuit Court of Grundy county; the Hon. G. O. Dietz, Judge, presiding. Heard in this court at the April term, 1924.
    Affirmed.
    Opinion filed October 10, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Mighell, Gunsul & Allen and Cornelius Reardon, for appellant.
    Hayes, Munts & Young and H. B. Smith, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Herman A. Stanhope, appellant, v. Archie C. Maple, appellee.
    Gen. No. 7,475.
    Suit for fraudulent representations and conversion of automobile. Judgment for defendant. Appeal from the Circuit Court of Peoria county; the Hon. Charles Y. Miles, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed October 10, 1925.
    Behearing denied January 12, 1926.
    Covey, Campbell & Covey, for appellant; George W. Hunt, of counsel.
   Howard White, for appellee; Joseph W. Maple, of counsel. Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Rollin Wallingford, appellant, v. John L. Smiley, appellee.
    Gen. No. 7,405.
    Action for negligent injury to passenger in taxicab. Judgment for defendant. Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1924.
    Beversed and remanded.
    Opinion filed October 10, 1925.
    Behearing denied January 12, 1926.
    J. W. Kern and Claude N. Saum, for appellant; Thomas F. Donovan, of counsel.
    Free P. Morris and Roscoe C. South, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Margaret Jordan Mulvihill et al. v. William Towner et al. Margaret Organ et al., appellees, v. Malachi Jordan, appellant.
    Gen. No. 7,478.
    Bill to remove cloud on title. Decree for complainants and for appellees on crossbill. Appeal from the Circuit Court of De Kalb county; the Hon. Mazzini Slusser, Judge presiding. Heard in this court at the April term, 1925.
    Beversed and remanded with directions.
    Opinion filed October 10, 1925.
    Behearing denied January 12, 1926.
    Archie G. Kennedy, for appellant.
    Thomas M. Cliffe, for appellees.
   Mr. Justice Jett

delivered the opinion of the court.


author: Mr. Justice Barry

text:
    Fourth District.
    Thomas Groves, administrator, appellee, v. American Glycerin Company, appellant.
    Action for wrongful death. Judgment for plaintiff. Appeal from the Circuit Court of Lawrence county; the Hon. J. C. Kern, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed December 2, 1924.

      McGaughey, Tohill & McGaughey, for appellant.
    Shaw & Huffman, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.


author: Mr. Presiding Justice Higbee

text:
    M. & M. Motor & Implement Company, appellee, v. Weber Implement & Automobile Company, appellant.
    Bill for an accounting. Decree for complainant. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the October term, 1924.

      Oertiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 9, 1925.
    T. A. O’Connor, for appellant.
    Ralph Cook, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Dorris Motor Car Company, appellant, v. C. H. Auten, appellee.
    Action in replevin. Judgment for defendant. Appeal from the City Court of Alton; the Hon. L. D. Yager, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed February 9, 1925.
    Rehearing denied March 24, 1925.
    C. C. Ellison, Gatewood & Lee, for appellant.
    Hiles Newell & Brown, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Helen McHale, appellee, v. James A. McHale, appellant.
    Action for personal injuries sustained in automobile accident. Judgment for plaintiff. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1924.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 9, 1925.
    Kramer, Kramer & Campbell, for appellant.
    McGlynn & MeGlynn, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Houston B. Moore, appellee, v. Standard Accident Insurance Company, appellant.
    Action on policy of accident insurance. Judgment for plaintiff. Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed February 9, 1925.
    Rehearing denied March 24, 1925.
    C. W. Burton and M. U. Hayden, for appellant.
    M. R. Sullivan, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


author: Mr. Justice Boggs delivered

text:
    Frances Mancuso, appellant, v. Edward Deimling and C. H. Auten, trading as C. H. Auten & Company, appellees.
    Action in replevin. Judgment for defendants. Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1924.
    Petition for certiorari stricken from files.
    Affirmed.
    Opinion filed February 9, 1925.
    Rehearing denied March 24, 1925.

      Arthur Stahl, for appellant.
    Hiles, Newell & Brown, for appellees.
   Mr. Justice Boggs delivered

the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Cattani Ugo, plaintiff in error.
    Prosecution for violation of Prohibition Act. Defendant convicted. Error to the County Court of Franklin county; the Hon, S. M. Ward, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed April 15, 1925.
    R. E. Smith, for plaintiff in error.
    Roy C. Martin, State’s Attorney, for defendant in error.
   Mr. Justice Barry

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. George F. Mash, plaintiff in error.
    Prosecution for violation of Medical Practice Act. Defendant convicted. Error to the County Court of Washington county; the Hon. W. P. Green, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed April 15, 1925.
    L. A. Cranston, for plaintiff in error.
    H. H. House, State’s Attorney, for defendant in error.
   Mr. Justice Barry

delivered the .opinion of the court.


text:
    Frank McCoy, appellee, v. State Bank of Yale, appellant.
    Action for money had and received. Judgment for plaintiff. Appeal from the Circuit Court of Jasper county; the Hon. F. R. Dove, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed April 15, 1925.
    Kasserman & Kasserman, for appellant.
    Isley & Yelvington, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    O. C. Munsey and George R. Mounsey, appellants, v. Lenerd Hirsch and Jacob Hirsch, appellees.
    Assumpsit on contract for sale of real estate. Judgment for defendants. Appeal from the Circuit Court of Pulaski county; the Hon. A. E. Somers, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed April 15, 1925.
    Rehearing denied August 19, 1925.
    C. S. Miller, for appellants.
    Fred Hood, for appellees.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Per curiam.

text:
    The People of the State of Illinois, defendant in error, v. John Fudorich, plaintiff in error.
    Prosecution for violation of Prohibition Act. Defendant convicted. Error to the Circuit Court of Madison county; the Hon. J. F. Gill-ham, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed.
    Opinion filed April 15, 1925.
    J. B. O’Neill & M. L. Burroughs, for plaintiff in error.
    Jesse R. Brown, State’s Attorney, for defendant in error.
   Per curiam.


text:
    Joel Frank Sanker and Rosa Nance, appellees, v. Chicago & Eastern Illinois Railway Company, appellant.
    Action to recover damages from water overflow. Judgment for plaintiffs. Appeal from the Circuit Court of Franklin county; the Hon. J. C. Kern, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    Craig & Craig, for appellant.
    R. E. Smith, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Edward Nance, appellee, v. International Mutual Fire Insurance Company, appellant.
    Action on fire insurance policy. Judgment for plaintiff. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the Mlareh term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    T. A. O’Connor, for appellant.
    E. L. Maher and R. W. Griffith, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Florence Elam, appellee, v. George Stanbery, appellant.
    Bastardy proceeding. Judgment for relatrix. Appeal from the County Court of Bond county; the Hon. H. C. Stuttle, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    F. M. Guinn, for appellant.
    Albert, Webb & Albert, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Francis McEndree and Louis McEndree, trading as McEndree Brothers, appellees, v. Illinois Central Railroad Company, appellant.
    Action for damages to shipment of horses. Judgment for plaintiffs. Appeal from the Circuit Court of Franklin county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    Moses Pulverman, for appellant.
    R. E. Smith; for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Vivian Plunk, appellee, v. City of Granite City, appellant.
    Action for personal injuries resulting from stepping into manhole. Judgment for plaintiff. Appeal from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    Faulkner & Moore, for appellant.
    H. J. Bandy, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    W. H. Faris, appellee, v. The American Railway Express Company, appellant.
    Action to recover damages for injury to colt shipped by plaintiff. Judgment for plaintiff. Appeal from the Circuit Court of Bond county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    Brown & Burnside, for appellant.
    J. H. Alliv and Robert Wright, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Charles Fisher, appellant, v. Hazel Fisher, appellee.
    Divorce proceedings. Decree for defendant. Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the M¡arch term, 1925.
    Reversed and remanded with directions.
    Opinion filed August 5, 1925.
    C. W. Burton, for appellant.
    Willie & Dunham, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    Fred W. Kunz, appellee, v. City of Du Quoin, appellant.
    Action for personal injuries caused by defective street. Judgment for plaintiff. Appeal from the Circuit Court of Perry county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    H. E. Kimmel, for appellant.
    M. C. Cook and L. H. Cranston, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.


text:
    Robert Hawkins, appellee, v. C. L. Gray et al., appellant.
    Action to recover for work and labor. Judgment for plaintiff. Appeal from the Circuit Court of Franklin county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    Moses Pulverman, for appellant.
    H. F. Knox, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.


text:
    Wabash Valley Motor Company, appellant, v. H. V. Pipp et al., appellees.
    Action on promissory note. Judgment for defendants. Appeal from the Circuit Court of Wabash county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    McGaughey, Tohill & McGaughey, for appellant.
    Kolb & White, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.


author: Mr, Justice Barry

text:
    D. T. Whitlock, appellee, v. Julius Schwartz, appellant.
    Action to recover for work and labor. . Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    Beasley & Zulley, for appellant.
    J. E. Grace and L. P. Zerweck, for appellee.
   Mr, Justice Barry

delivered the opinion of the court.


text:
    K. D. Horall Hardware Company, appellee, v. Van Camp Hardware & Iron Company, Inc., appellant.
    Action to recover overpayment of account. Judgment for plaintiff. Appeal from the Circuit Court of Richland county; the Hon.
    G. H. Miller, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    J. C. Ritter, for appellant.
    John Lynch, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Louis Kalish, appellant, v. John Kovacic and Katie Kovacic, appellees.
    Bill to foreclose mortgage. Bill dismissed for want of equity. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    H. G. Baker, for appellant.
    M. V. Joyce, for appellees.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    William Roche, defendant in error, v. Catherine Grossheim, plaintiff in error. H. Bruce Fleming et al., defendants in error.
    Suit to foreclose mortgage. Decree for complainant. Error to the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    Jas. G. McHale and E. R. MeHale, for plaintiff in error.
    M. V. Joyce, for defendants in error.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Dorothy Schlueter, by her father and next friend Arthur Schlueter, plaintiff in error, v. Belleville Stove & Range Company, defendant in error.
    Action for personal injuries in collision with motor truck. Judgment for defendant. Error to the Circuit Court of St. Clair .county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    P. K. Johnson and E. W. Kreitner, for plaintiff in error.
    Farmer & Klingel, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    E. V. Riney, appellee, v. Southern Railway Company, appellant.
    Action for personal injuries sustained in contact with timber projecting from moving train. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. William F. Borders, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    Kramer, Kramer & Campbell, for appellant.
    Beasley & Zulley, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Justice O'Connor

text:
    John F. Sullivan, Appellee, v. Edward Hines Lumber Company et al., Appellants.
    Gen. No. 29,920.
    1. Corporations — appropriation of surplus to trustees for formation of subsidiary corporations as declaration of dividend. The adoption of a resolution by the stockholders of a corporation appointing a committee of stockholders authorized to acquire the stock of another corporation and to form additional corporations in such other states as the committee deemed advisable, the committee to hold -all of such stock in trust for the stockholders of the parent corporation, and directing the officers of the corporation to appropriate out of the surplus funds of the corporation sufficient funds to accomplish the purposes aforesaid, followed -by action by the directors of the corporation as- provided in such resolution, held not equivalent to the declaration of a dividend among the then stockholders of the -corporation; so as to exclude from an interest in the corporations thus acquired and formed and the trust estates in their property thereafter created, -one who became a stockholder of the parent corporation -subsequent to the adoption of such resolutions.
    2. Trusts — personal representatives and heirs of deceased co-trustee as necessary parties in suit to set aside declarations of trust. On a suit to set aside a settlement agreement and two declarations of trust wherein one of the trustees was made a defendant both as trustee and in his individual capacity, the court was not precluded from entering a final decree for want of necessary parties because the personal representatives and heirs of such trustee were not made parties following his death after filing answer, where by the terms of such agreement and declarations of trust the duties of the said trustee, upon his death, devolved upon the surviving trustees, and he was not a necessary party in his individual capacity, his individual interest being fully protected by the corporation of which he was a stockholder.
    3. Trusts — coheirs of deceased stockholder as necessary parties in suit to set aside declaration of trust executed prior to acquisition of stock by complainant’s ancestor. The court was not precluded by a want of necessary parties from entering a final decree in the suit of a stockholder of a corporation to set aside a settlement agreement and two declarations of trust executed pursuant to resolutions of the stockholders prior to the acquisition of such stock by -the father of such stockholder, on the ground that complainant’s coheirs to the stock were not made parties, where complainant acquired such stock by descent and by assignment from his coheirs, the adoption of the resolutions aforesaid not being equivalent to the declaration of a dividend among the then stockholders of the corporation so os to exclude complainant’s ancestor from an interest as stockholder in the- trust estates so created.
    4. Trusts — sufficiency of bill to show grounds for setting aside trust agreement not binding upon complainant. A settlement agreement for the formation of a Massachusetts trust to- operate the business -of a lumber company and certain subsidiary corporations formed by trustees of the stockholders of the lumber company pursuant to authority conferred by prior declarations of trust, executed by the trustees -under such declarations of trust and by all of the stockholders of the lumber company except complainant, who refused assent thereto, even if not binding upon complainant, will not be set aside by a court of equity on his application, where it appears that the settlement agreement has- operated for a considerable period to the manifest advantage of the corporations and -stockholders concerned, including complainant, where there is no claim that the execution of the agreement was ultra vires the corporation, where there is no claim of fraud or want of good faith, and where the complainant is not free from laches.
    5. Equity — amendment of bill so as to ask relief inconsistent with theory of original bill. Where -complainant in a suit to set aside a settlement agreement and two declarations of trust involving the property of a corporation of which he was a stockholder predicated his right -to- the relief sought upon the theory that the resolutions of the stockholders pursuant to which such declarations of trust were executed, were valid and binding upon him, it was not error for the court to deny his application to so amend his bill as to ask that such resolutions be declared null and void.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Charles M. Poell, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Reversed and remanded.
    Opinion filed December 2, 1925.
    Rehearing denied December 17, 1925.
    Newman, Poppenhusen, Stern & Johnston, for appellant Edward Hines Lumber Co.; Jacob Newman, Edward R. Johnston and Henry Jackson Darby, of counsel.
    William S. Bennett, Homer J. Smith, Fisher, Boyden, Kales So Bell, for other appellants; Clapp, Richardson, Elmquist, Briggs & Macartney, A. W. Clapp and Laird Bell, of counsel.
    McCormick, Kirkland, Patterson & Fleming, for appellee; Charles F. Rathbun, Robert N. Golding and J. B. Martineau, of counsel.
   Mr. Justice O'Connor

delivered the opinion of the court.

By this appeal the defendants seek to reverse a decree of the superior court of Cook county entered on the 19th of July, 1924, whereby three documents each dated January 1, 1918, one of which is designated as a settlement agreement and the other two as declarations of trust, were held to be null and void, because complainant had not signed or consented to them. Complainant has assigned cross errors on the failure of the chancellor also to set aside two certain resolutions dated May 8, 1902, and January 16, 1904.

The record discloses that complainant, the owner of ten shares of the capital stock of the Edward Hines Lumber Company, is a resident of Los Angeles, California, and the defendant, the Edward Hines Lumber Company, is an Illinois corporation, organized April 9, 1897, with a capital stock of $300,000 which was divided into 3,000 shares each of the par value of $100 ; that the duration of the company was for a period of five years. Its charter having expired on April 8, 1902, it continued to do business until it was reorganized June 6, 1902. From the date of its incorporation it has been engaged in the lumber business. It further appears that complainant’s father, J. B. Sullivan, for many years had been employed by the lumber company and in order to retain his' services, Edward Hines, president of the lumber company, on January 2, 1903, entered into an agreement with Sullivan, whereby Hines was to sell Sullivan ten shares of stock in the lumber company then owned by Hines for $1,000 per share, the stock at that time having a value of about $1,400 per share. Sullivan did not have sufficient money to pay for the stock at once but made payments from time to time until he had paid for it in full, the last payment being April 18, 1904. He died July 30, 1904, leaving three sons who inherited the stock. Complainant’s two brothers assigned their interest in the stock to him and he became the owner of record of the ten shares October 10, 1906. The lumber company grew and prospered. Some dividends were paid but most of the surplus was turned over by the lumber company to certain trustees and by the latter invested for the benefit of the lumber company in the operation of its business.

On May 6,1902, at a meeting of all the stockholders of the lumber company, a resolution was unanimously adopted, wherein it was recited that it was desirable for the stockholders of the company to own and control the manufacturing plant of the Lumbermen’s Mill Company and to operate that mill as an adjunct to the lumber company’s business; that it was also desirable for the stockholders to' organize various corporations and to operate them, as auxiliaries to the lumber company’s business, and that it was further desirable for the stockholders to purchase stock of other corporations, and it was resolved that Edward Hines, L. L. Barth and C. F. Wiehe be appointed a committee of the stockholders and: authorized and directed to purchase the capital stock of the Lumbermen’s Mill Company and hold the same in trust for the stockholders of the lumber company; to purchase for the stockholders of the lumber company all or part of the capital stock of such corporations as in the judgment of the committee might be advisable and to hold the same in trust for the stockholders of the lumber company; to incorporate manufacturing and other companies in such states as the committee might deem advisable and for the best interests of the stockholders of the lumber company and to hold such stock in trust for the lumber company’s stockholders. The officers of the lumber company were authorized and directed to set aside and appropriate on demand of the committee, out of the surplus fund of the lumber company, sufficient funds for such purposes. The committee was given power to fill any vacancies in its membership for any cause, and it was also authorized to decrease or add to its membership. Afterwards and on the same day the board of directors of the lumber company met and the president submitted the resolution adopted that day by the stockholders, and a resolution was passed by the directors instructing the officers to set aside and pay over sufficient funds to the committee of three as might be required, as provided for in the resolution, passed by the stockholders.

On February 3, 1903, the annual meeting of the stockholders was held and, apparently for the reason that the lumber company had received its new charter after the resolution of May 6, a resolution was adopted ratifying and confirming the resolution of May 6,1902. Afterwards on June 16,1904, the stockholders’ annual meeting was held, at which time the entire capital stock of the company was represented and a resolution was adopted wherein it was stated that it was desirable and for the best interests of the lumber company to acquire timberlands where it could profitably be done with the surplus, rather than to distribute such surplus in cash; and that there were large tracts of timber-lands offered for sale in Mississippi and adjacent states, which it would be to the best interests of the lumber company to acquire. It was there resolved that Edward Hines be appointed trustee for the stockholders of the lumber company; and he was authorized and directed to purchase, for the benefit of the stock-' holders of the lumber company, timberlands and other property to the extent of $4,000,000 and was given full power to make contracts and take title in his individual name, but he was to hold such timberland and other property in trust for the benefit of the lumber company’s stockholders and the officers of the lumber company were directed to set aside and appropriate out of its surplus funds $4,000,000, $3,000,000 of which was to be taken out of the present surplus and $1,000,000 to be taken out of the surplus for the next year, 1905. Afterwards, on the same day, the directors of the lumber company met and the officers of the lumber company were then instructed to set aside and pay out of the surplus funds to Edward Hines, a sum not exceeding $4,000,000 which was to be used by him in the purchase of timberlands and other property to be held in trust by Hines for the stockholders of the lumber company.

It further appears from the record that under the resolution of May 6, 1902, the lumber company advanced moneys to Hines, Barth and Wiehe, as trustees, until December 31, 1910, the total amount of such advances being $3,845,673.73; that under the resolution of January 16, 1904, there was advanced to Hines, trustee, a total of $3,571,514.86, the last of such advanees being made December 31, 1910. These moneys were invested by the trustees and there is no contention that such investments were not wisely made. On the contrary, it seems to be conceded that the lumber company and consequently its stockholders have been greatly benefited by what the trustees did.

Sometime prior to January 1, 1918, it was thought by the management of the lumber company that the title to its property, much of which was located in other states, was not in a satisfactory condition, and to remedy this counsel for the lumber company prepared an elaborate agreement which was, in effect, what is known as a Massachusetts common-law trust. This agreement was executed by the lumber company, by the trustees under the resolutions of May 6, 1902, and January 16, 1904, and by all of the stockholders of the lumber company, except complainant. It is designated as the settlement agreement. The agreement by its terms appointed Hines, Barth, and Wiehe, trustees of two trusts designated as Edward Hines Yellow Pine Trust, and the Lumber Investment Association. And the three trustees executed two declarations of trust, one in the Edward Hines Yellow Pine Trust and the other in, the Lumber Investment Association, each dated January 1,1918.

The settlement agreement was not executed by all of the parties on January 1, 1918, but it took some six weeks to secure the signatures of the parties, some of them being located in states outside of Illinois. After this was done, Wiehe went to Los Angeles to see complainant for the purpose of securing his signature to the settlement agreement. This was done after correspondence had passed between complainant in Los Angeles and Wiehe, who was in Chicago; but it appears that when Wiehe went to Los Angeles, some difficulties arose between him and complainant. So that, as far as the record discloses, the nature of the settlement agreement was not explained to complain.ant, and he never signed it. Afterwards, although the agreement was not executed by complainant, the lumber company and the trustees proceeded to carry out the terms- of the agreement. The trustees under the resolutions of 1902 and 1904 conveyed to the trustees under the agreement of January 1, 1918, immense tracts of timberlands and other property, including 7,768 shares, of the par value of $100 each, of the capital stock of the Edward Hines Pine Company, a Delaware corporation. Hines, Barth and Wiehe, as trustees under the 1902 resolution, owned all the capital stock of the Champion Lumber Company, an Illinois corporation, with assets of at least $5,000,000, and they transferred this stock to the trustees under the 1918 agreement. The lumber company conveyed to the trustees under the 1918 agreement some 50,000 acres of timberland situated in Mississippi, of the value of at least $3,000,000, and the record discloses that all of the property conveyed to the trustees under the agreement of 1918 was of the value of at least $10,000,000.

Complainant alleged in his bill (inter alia) that the trustees under the 1902 and 1904 resolutions made no distribution to the beneficiaries under those resolutions of any of the profits or proceeds of the trust property or assets and that this was in violation of such resolutions, and, therefore, complainant was entitled to an accounting from the trustees under the resolutions. It is further alleged that complainant had no knowledge of the execution of the settlement agreement and the two declarations of trust, dated January 1, 1918, until about the 6th of August, 1920; that although he was a stockholder of record of the lumber company, he received no notice of any annual or special stockholders’ meeting, except in 1910, 1917, 1920. It was further alleged that Hines, Barth and Wiehe devised the 1918 agreement for the purpose of defrauding complainant out of his interests in the property; that the conveyance and transfers of property pursuant to the 1918 agreement were made without consideration and a fraud upon complainant and the stockholders of the lumber company. The prayer was for an accounting and disposition of the trust funds and that complainant might be paid what was due him, as shown by such accounting; that the trustees under the 1918 agreement be required to reconvey to the lumber company the Mississippi land of approximately 50,000 acres. And further the prayer was to the effect that all of the transfers of properties which were made pursuant to the 1918 agreement be vacated and set aside and that the settlement agreement and the two declarations of trust of 1918 be declared null and void.

The answer of certain defendants set up, among other things, that since the Edward Hines Lumber Company was organized June 6, 1902, and since neither complainant nor his father was a stockholder at that time, complainant never, in fact, had an interest in any of the property held by the trustees under resolutions of 1902 and 1904, but that such property was held by the trustees for the sole use and benefit of the persons who owned the stock in the old Hines Lumber Company, the charter of which expired in April, 1902, and, therefore, complainant had no interest in that property; that the $4,000,000 which the officers directed should be paid out of the lumber company’s surplus on January 16, 1904, pursuant to the resolutions of the stockholders, was, in fact, the declaration of a dividend and belonged to the then stockholders of the lumber company; that since neither complainant nor his father owned any stock at that time, he had no interest in this surplus; and that in the preparation of the settlement agreement of 1918, it was erroneously assumed that complainant had an interest in the trust property under the 1902 and 1904 resolutions.

Considerable evidence was introduced before the chancellor at the close of which counsel for complainant asked leave to amend the prayer of his bill so as to pray that the resolutions of 1902 and 1904 be decreed to be null and void. The request was denied. It is stated in defendants’ brief (although not shown by the record) that at the close of the evidence the chancellor stated that complainant might have an accounting if he so desired, but that complainant refused such offer. This is not denied in complainant’s brief and the fact was substantially admitted on oral argument.

There was no attempt by complainant to prove any fraud on behalf of any of the defendants as he had alleged in his bill. Nor is there any intimation in this court that there was such fraud. On the contrary, it seems to be conceded that the business of the lumber company was honestly and ably conducted by the officers and trustees for the benefit of the lumber company and its stockholders, and that the assets of the company have been greatly increased by the manner in which the business was conducted.

1. It is contended that the court erred in holding that complainant had an interest in the trust estate created pursuant to the resolution of May 6, 1902, because that resolution was equivalent to the declaration of a dividend which belonged to the then stockholders and that neither complainant nor his father was a stockholder of the lumber company at that time. Numerous authorities are analyzed and discussed on this point, but any reference to this argument or the authorities we think would serve no useful purpose, because it is obvious that no dividend was declared by the resolutions of the stockholders, nor by the directors’ meetings held May 6, 1902 and January 16, 1904, but the money was simply ordered turned over to the trustees for the purpose of investment and was at all times' considered by all to be the property of the lumber company. The resolutions of the stockholders provided that the trustees purchase for the Edward Hines Lumber Company certain property and hold the same in trust for such stockholders. They also contained other provisions to the same import and the resolution of the directors passed on the same date was to the same effect. These resolutions clearly show that what was done bore no semblance to the declaration of a dividend, but the action taken was for the sole purpose of advancing the interests of the Hines Lumber Company and of its stockholders. It is clear that it was thought that this could be accomplished better by trustees than in the ordinary way by the corporation itself. The record discloses that since 1902 all of the officers, directors, stockholders, trustees and all parties in interest have been of the opinion and have acted on the theory that all property held by the trustees, either under the resolution of 1902 or 1904, belonged to and was the property of the Hines Lumber Company and of its stockholders; that they were of this opinion is shown by the settlement agreement of January 1, 1918. It is there stated that in the year 1902 and subsequent years, the lumber company had, undistributed, a surplus larger than was necessary for the conduct of its business and that at the meetings of the stockholders, held in 1902 and 1904, action was taken by all of them directing that the lumber company should set aside and pay over to’ the trustees for the benefit of its stockholders such portions of its surplus as might from time to time be “profitably invested” in certain properties by the trustees, and be held in trust by them “for the benefit of the stockholders of the company. ’ And it is further stated that the property invested and reinvested by the trustees was on behalf of and for the benefit of all the stockholders of the company, and the property held under the two trust agreements of 1902 and 1904 is specifically referred to and complainant is named therein as a stockholder having his pro rata interest in the trust property. The first intimation that complainant had no- interest in these trust funds or property appears when the answers of certain defendants were filed. It is clearly an afterthought and entirely without merit. It is clear that complainant as a stockholder in the Hines Lumber Company is entitled to his proportionate share of the trust property held under the trust agreements of 1902, 1904 and 1918.

2. The defendants further contend that the court was without jurisdiction to. proceed to a final decree, because of the absence of necessary parties (a) that since it appeared that defendant Wiehe had died after the filing of his answer, his personal representatives and his heirs should have been made parties and (b) that complainant’s two brothers were necessary parties. We think neither of these contentions can be sustained. Wiehe was made a party defendant as trustee and in his individual capacity. Under the trust agreement of 1902, upon his death the duties devolved upon the surviving two: trustees, Hines and Barth, and we think that he was not a necessary party to the- bill in his individual capacity and any interest he might have in the property of the Hines Lumber Company was sufficiently protected by the lumber company, and since we have held that the action of the stockholders and directors taken in 1904 as shown by the resolutions was not. the equivalent of the declaration of a dividend, there was no necessity for making complainant’s two brothers parties. Defendants only contend that, they were necessary parties on the theory that the action taken under the 1904 resolutions was equivalent to the declaration of a dividend. While we have held that the record discloses that complainant as a stockholder of the Hines Lumber Company is interested in the property held under the trusts of 1902 and 1904, according to the number of the shares of stock he owned, yet we are of the opinion that he is not entitled to have the two declarations of trust and the settlement agreement, dated January 1, 1918, declared void. The learned chancellor held that they were null and void because neither of them was signed or consented to by complainant. The defendants did not contend that the settlement agreement of 1918 was binding upon complainant, and we shall assume that it was not. But this fact would not warrant a court of chancery in decreeing that it was null and void if to do so would work an injury to- all of the parties including complainant.

The evidence shows that after the execution of the 1918 agreement, the trustees under the resolutions of 1902 and 1904 transferred to- the trustees under the 1918 agreement Immense tracts of lands and other property, including all of the shares of capital stock in the Champion Lumber Company, a Delaware corporation, with assets of more than $5,000,000; that the Hines Lumber Company conveyed to the trustees under the 1918 agreement more than 50,000 acres of land, and in all more than $10,000,000 of property had been transferred pursuant to the agreement of 1918. Since it appears without dispute that the transfer of all the property to the- trustees mentioned in the 1918 agreement was of great benefit to the Hines Lumber Company and to all of its stockholders, including complainant (and there is no claim that it was ultra vires the corporation), it would be most inequitable and a great loss to all the stockholders, including complainant, to set aside all of such conveyances and transfers of property. Equity only decrees that which is right and just and never decrees that which would work an injustice to everybody concerned. While complainant says that he had greater rights under the resolutions of 1902 and 1904, we think they are not of such a character as would warrant a court in setting aside all that had been done under the 1918 agreement. Moreover, we think complainant is not free from laches, in that he took no steps to ascertain the terms of the 1918 agreement but apparently refused to let Wiehe explain the matter to him. He took no steps until 1920 when he employed a lawyer in Chicago to look into the matter at which time apparently all of the records of the lumber company were exhibited to his counsel. Then a suit was not brought until several months thereafter. It is undisputed that during a period from March to May, 1918, complainant knew that all of the stockholders had entered into the agreement which Wiehe was endeavoring to show to him. This appears from correspondence in the record. On March 25, 1918, Wiehe from Chicago wrote a letter to complainant at Los Angeles in which he stated: “As you know, certain stockholders of the Edward Hines Lumber Company, including yourself, own certain timberlands in the State of Mississippi, and for sometime past they have been compelled to carry the burden of a good deal of expensive and unjust litigation upon matters connected with those holdings. Some of the pending litigation has been removed to the Federal courts. These owners have been in consultation with their counsel and reached the conclusion that some plan should be adopted by which their interests will be conserved and safeguarded. I have just returned from a trip to Pennsylvania and secured the approval of a plan by some of the parties residing in that state which I would like to submit to-you.” The letter then concluded with the request that Wiehe be permitted to come to Los Angeles and explain the matter to complainant. On March 25 complainant replied saying, “I prefer that you convey in writing any information which' you wish to impart regarding the subject matter of your letter,” but he then stated that a personal interview could be had if an official shorthand reporter was present to report the interview, whose services should be paid for by Wiehe. On the 10th of April, following, Wiehe replied that he had no objections to complainant having a shorthand reporter present at the interview and suggested that in order to save time and that complainant might be fully satisfied regarding all the matters, complainant have his attorney present also. Afterwards Wiehe went to Los Angeles and trouble arose between the parties, apparently on the ground that Wiehe had not promised to pay for the expenses of the court reporter, and while Wiehe was at Los Angeles, on May 14, 1918, he wrote complainant a letter in which Wiehe stated that he thought from complainant’s attitude that he apparently was preparing to start some litigation. The letter also contained the following: “The matters I explained to you yesterday and today in connection with the affairs of the Edward Hines Lumber Company are of interest to you. They have been presented and fully examined into by each stockholder of the corporation and have met with their entire approval.” It is clear that the defendants were endeavoring to explain the settlement agreement to complainant. They had no objection to a reporter, being present at the interview, but thought it was a good plan, and suggested that complainant have his counsel present. It also appears, from the correspondence above referred to, that complainant knew that all of the stockholders had agreed to the plan that Wiehe was endeavoring to explain to him, and he ought not to be heard to say that the agreement of 1918, in view of what has been done under it, is void, because he alone did not sign it.

If complainant feels that he has not received, by way of dividends, all that he is entitled to, it might be that he is entitled to an accounting and a decree that such dividend be declared. Channon v. H. Channon Co., 218 Ill. App. 397. But he is not asking for this.

Complainant contends under his assignment of cross errors that the court erred in refusing him to amend the prayer in his bill, whereby he sought to ask that the resolutions of 1902 and 1904 bé decreed to be null and void. We think the action of the court was entirely proper, because, from the allegations of complainant’s bill, it is clear that he predicated his right for relief on the theory that these resolutions were, both valid and binding and gave him valuable rights which he sought to enforce. Under the allegations of the bill no such relief as plaintiff now contends he was entitled to would be warranted.

The decree of the superior court of Cook county is reversed and the cause remanded.

Reversed and remanded.

Thomson, P. J., and Taylor, J., concur.


author: Mr. Justice O’Connor

text:
    Cardiff Gypsum Plaster Company, Appellee, v. Hales Coal & Material Company, Defendant. R. H. Newitt et al., Garnishees, Appellants.
    Gen. No. 30,056.
    1. Assignments for creditors — presumptive propriety of assignment. The assignment by a debtor who is in financial difficulty and unable to pay his debts in full, of all his goods and chattels for the benefit of his creditors, should be looked upon by the courts with favor, because it tends to expedite payment of all the creditors without unnecessary litigation and expense..
    2. Fraudulent conveyances — assignments for benefit of creditors. An assignment by an insolvent debtor of all his goods to a trustee for the benefit of creditors is not a “sale transfer or assignment” of his goods within the meaning of the Bulk Sales Act, Cahill’s Stat., ch. 121a, the quoted words in such act meaning substantially the same thing, and the purpose of the act being to prevent fraudulent sales in bulk under the guise of other names.
    Appeal 'by defendants from the Municipal Court of Chicago; the Hon. Theodore F. Ebxer, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Reversed.
    Opinion filed December 2, 1925.

      Knapp & Campbell, for appellants; John Howard Hershberger, of counsel.
    Herbert A. Schryver, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

On August 28, 1924, plaintiff brought an action of assumpsit against the Hales Coal & Material Company, to recover on two promissory notes executed by the defendant and on the same day filed an affidavit for a writ of attachment in aid, the ground for attachment being that the defendant had, within two years last past, fraudulently conveyed or assigned its effects so as to hinder and delay its creditors. The writ was issued on the same day and served on the garnishee. The defendant filed an affidavit of merits in which it admitted the execution of the two promissory notes and there was no denial that they were still due and unpaid, but it was further set up that the defendant was in financial difficulties and a number of its creditors had formed a creditors ’ committee to take over defendants’ assets for the benefit of defendants’ creditors and that this had been agreed upon by the defendants and thereupon it had made an assignment to a committee of defendants’ creditors for the benefit of all of its creditors; that plaintiff was notified by the chairman of the creditors’ committee of the assignment and afterwards the creditors’ committee had sold the property to Henry Crown, one of the garnishees, and that the' proceeds of the sale were in the hands of the creditors ’ committee. It was further set up that the sale was made in good faith. The garnishees answered to the effect that the defendant being insolvent, made an assignment of all its assets for the benefit of all its creditors and that the assignee afterwards sold the property; that all of the creditors were notified that certain dividends were paid by the assignee to all of the creditors, including plaintiff, but the latter refused to accept the amount sent him. The answer further set up that the assignment and sale of the goods were made in good faith for the sole purpose of conserving the assets for the interest of all the creditors. The case was tried before the court without a jury. The attachment was sustained and the court found that there was $1,069.06 due and owing from the defendant to the plaintiff, and further found that the garnishee owed the same amount to the defendant. Judgment was entered on the finding and the garnishees-prosecute this appeal.

The facts were stipulated from which it appears that the provisions of the Bulk Sales Law, chapter 121a, Cahill’s St., were not- complied* with, either at the time the defendant transferred the goods to the creditors ’ committee or at the time the creditors ’ committee sold them to the garnishee, Crown. It further appears from the stipulation that plaintiff did not attend any meeting of the creditors and while he received a number of letters from the creditors’ committee, explaining the matter, plaintiff at no time consented to‘ the transfer of defendants’ assets to the committee or to the garnishee, Crown, but, on the contrary, throughout the proceedings insisted that his claim be paid in full. The learned trial judge followed a number of opinions rendered by this court, holding that the act did apply to such an assignment or transfer. And since, in the instant' case, it was conceded that the provisions of that* act had not been complied with, the transfer and assignment were held to be void as against plaintiff who- was- one of defendants’ creditors. The question for decision is whether the Bulk Sales' Act applies to the assignment or transfer by a debtor of his. goods and chattels to a trustee for the benefit of his creditors.

The Bulk Sales Act was enacted in 1913 and by section 1 it is provided: “That the sale, transfer or assignment in bulk of the major part of the whole of a stock of merchandise, or merchandise and fixtures or other goods and chattels of the vendor’s business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor’s business shall be fraudulent and void as against the creditors of said vendor, unless the said vendee shall, in good faith, at least five (5) days before the consummation of such sale, transfer, or assignment demand and receive from the vendor a written statement under oath of the vendor * * containing a full, accurate and complete list of the creditors of the vendor, their addresses and amounts owing to each as near as may be ascertained * * *; and unless the said vendee shall at least five days before taking possession of said goods and chattels and at least five days before the payment or delivery of the purchase price, * * * in good faith, deliver or cause to be delivered or send or cause to be sent personally or by registered letter properly stamped, directed and addressed, a notice in writing to each of the creditors of the vendor named in the said statement, or of whom the said vendee shall have knowledge, of the proposed purchase by him of the said goods and chattels and of the price, terms and conditions of such sale.” Section 2 of the Act provides: “Any vendor of all or the major portion of a stock of merchandise or merchandise and fixtures or other goods and chattels of the vendor’s business, in bulk, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor’s business or any person for or on behalf of such vendor who shall knowingly or wilfully make or deliver or cause to be made or delivered any false statement or any statement which in any material portion is false or shall knowingly or wilfully fail to include the names of all the creditors of said vendor in said statement, as provided for in section 1, of this Act, shall be * * * punished.” Section 3 provides: “Vendors and vendees'under this Act shall include corporations, associations, copartnerships and individuals,” etc., and further that the act does.not apply to sales by executors, administrators, receivers, trustees in bankruptcy or by any public officer under judicial process.

The purpose of the statute was to prevent the sale of a stock of goods in bulk by a debtor (unless in the ordinary course of trade) without first giving his creditors notice and an opportunity to protect themselves. Talty v. Schoenholz, 224 Ill. App. 158. In that case the court said (p. 163): “The purpose of this statute was- to prevent sales of stocks- of goods in bulk without first giving the creditors of the vendor an opportunity to protect themselves against the sale.” The assignment by a debtor, who is in financial difficulty and unable- to pay his debts in full, of all his- goods and chattels for the benefit of his creditors, should be looked upon with favor because it tends to- expedite payment of all the creditors without unnecessary litigation and expense. Such assignments have been looked upon with favor from an early time.

In the case of Pickstock v. Lyster, 3 Maule & Selwyn 371, it was said by Lord Ellenborough that an assignment for the benefit of creditors was, “An act of duty rather than of. fraud, when no purpose of fraud is proved. The act arises out of a discharge of the moral duties attached to his character of debtor, to make the fund available for the whole body of creditors. Here if the assignment had been* for the purpose of fraud up.on the plaintiff, the plaintiff would have been entirely excluded from it, whereas it appears that his name was. once proposed and inserted as trustee.” And in the same case Bayley, J., concurring said: “It seems to me that this conveyance, so far from being fraudulent, was the most honest act the party could do. He felt that he- had not sufficient to satisfy all his debts and he proposed to distribute his property in liquidation of them; this was not acceded to for the plaintiff endeavored by legal process to obtain his whole debt, the obtaining of which would have swept away the property from the rest of the creditors.”

In the instant case the debtor’s goods and chattels were assigned by it for the benefit of all the creditors, including plaintiff. “It was the most honest act’ ’ that the defendant could do. It could not pay its debts in full and, therefore, it proceeded to distribute its property equitably among all of its creditors, including plaintiff. Plaintiff was not satisfied but wants to obtain payment in full to the detriment ofK the other creditors. So that under the facts and the law the assignment by the defendant of his goods and chattels for the benefit of his creditors ought to be sustained, unless to do so would violate provisions of the Bulk Sales Act.

It will be noted that the act makes the “sale, transfer or assignment” of a debtor’s goods in bulk otherwise than in the ordinary course of business void as against the creditors, unless notice is given to all the creditors. We think the words, “sale, transfer or assignment” as used in the act all mean substantially the same thing. That is, they were different terms used for the purpose of preventing fraudulent sales in bulk under the guise of other names. The' statute does not in terms refer to an assignment by a debtor for the benefit of his creditors and we think such assignment, keeping in mind that the purpose of the act was to prevent fraudulent sales, is not within the purview of the act. But counsel for the plaintiff says that this question has been decided to the contrary in a number of cases by this court, our Supreme Court and courts of other jurisdictions, and in support of this counsel cites the cases of National Trust & Credit Co. v. Kiningham, 201 Ill. App. 78; Farmers State Bank v. Blanchard, 206 Ill. App. 323; Danville Auburn Auto Co. v. National Trust & Credit Co., 212 Ill. App. 116; Traeger v. National Surety Co., 212 Ill. App. 267; United Paper & Trading Co. v. Allen, 222 Ill. App. 261; Resler v. Seaman, 233 Ill. App. 305; Carney v. Rubin, 236 Ill. App. 622; Pogue v. Rowe, 236 Ill. 157; Johnson Co. v. Beloosky, 263 Ill. 363; Bailen v. E. P. Badger Import Co., 99 Neb. 24; Gallus v. Elmer, 193 Mass. 106; Sampson v. Brandon Grocery Co., 127 Ga. 454; Humphrey v. Coquillard Wagon Works, 37 Okla. 714; and Youghiogheny & Ohio Coal Co. v. Anderson, 186 Mich. 349.

The Kiningham case which was decided by the Appellate Court -of the Third District, was an action of assumpsit, based on promissory notes. The defendant filed a plea setting up that after making the notes he was unable to pay his debts; that he entered into an agreement, whereby he was to convey his property, real and personal, for the benefit of his creditors to Kiningham and that plaintiff was to release him from the debt. The evidence showed that at a meeting of the defendant’s creditors, it appeared that the defendant was unable to pay all his debts and. a committee was appointed with a view of having defendant make an assignment for the benefit of his creditors, whereby he could be released from his debts without going through bankruptcy. Such assignment was made to Kiningham as trustee. This was not consented to by plaintiff and another creditor. The court said (inter alia) that the assignment did not purport to be in conformity with the provisions of the Bulk Sales Law and that “the assignment not being for the benefit of all the creditors, but only such as might accede thereto, and made without any pretense of compliance with the statute is void (Pogue v. Rowe, 236 Ill. 157) and is not a defense to the notes.” It will be noted from the quotation just made that the assignment for the benefit of creditors in that case was held not to be a good defense, because it was not made for the benefit of all the creditors, hut only for those who acceded to it. And the court further held that it was void, no attempt having been made to comply with the provisions of the Bulk Sales Law and cited, in support of this, the Pogue case. In the Pogue case an insolvent debtor transferred his stock of merchandise to' Pogue for the benefit of his creditors. One of the creditors obtained judgment against the debtor. An execution was levied on the property in Pogue’s possession. Pogue sued out a writ of replevin and regained possession of the goods. He was defeated in the justice court and an appeal was taken to the county court, where he was again defeated and a writ of error was issued out from the Supreme Court. The court said (p. 158): “When the property was transferred to Pogue there was no attempt to comply with the ‘Bulk Sales Act’ (Laws of 1905, p. 284). The court held the transfer to Pogue to be void on account of this noncompliance. This view is erroneous. That act is unconstitutional. We have so held since this case was tried in the county court. Off & Co. v. Morehead, 235 Ill. 40.” The court there further held the statute of this State in reference to voluntary assignments for the benefit of creditors was suspended by the National Bankruptcy Act of 1898, but that a creditor might still make a common-law assignment for the benefit of his creditors. It is clear that the Supreme Court in the Pogue case in no way held by implication or otherwise that the Bulk Sales Law applied to assignments made by a debtor for the benefit of his creditors. It simply said that the Bulk Sales Act of 1905 had theretofore been held unconstitutional.

In the case of the Farmers State Bank, which was decided by the Appellate Court of the Fourth District, the case is not published in full, but we have been furnished by counsel with a copy of the opinion from which it appears that Norton Bros, who were engaged in the general merchandise business were financially embarrassed and made an assignment of its goods for the benefit of its creditors. No attempt was made to comply with the provisions of the Bulk Sales Law. The trustees for the creditors, sold the assets to Blanchard. Plaintiff having obtained a judgment against Norton Bros, levied on the property in the possession of Blanchard. It was there held that the sale was void as to nonconsenting creditors. The court further held that the assignment did not comply with the statute of this State concerning assignments for the benefit of creditors. The fact that the statute concerning assignments was held by the Supreme Court in the Pogue case to have been suspended was not called to the court’s attention. No authorities are cited in the opinion on the question of the application of the Bulk Sales Act. Nor does it appear that there was any contention there made that that Act did not apply.

The Kiningham case, supra (201 Ill. App. 78) was again before the court in 212 Ill. App. 116, and the court there followed the rule announced in the first appeal, which had held the sale of the goods in question void, because of failure to comply with the provisions of the Bulk Sales Act. There was no discussion of this question, but only a reference to the former opinion.

In the Traeger case, which was decided by the First Division of the Appellate Court of the First District, it was held that an assignment for the benefit of creditors came within the provisions of the Bulk Sales Act. That case was a suit upon a replevin bond and from the evidence it appeared that Herman Breyer, the proprietor of a furnishing goods store in Chicago, was in financial difficulties and executed a bill of sale to two of his creditors — Katz and Pillman — for the benefit of all of his creditors, whereby he conveyed and assigned his stock of merchandise. The merchandise was to be sold and the proceeds distributed among the creditors. The assignees sold the goods to one Weininger. After the assignment, suit was brought against Breyer by a creditor. Judgment was obtained and execution issued and a levy made on the goods in the store. Weininger brought replevin and took the goods under the writ. He was defaulted in the action and a writ of retorno habendo was issued. The goods were not returned, and suit was brought on the bond. The court quotes from section 1 of the Bulk Sales Act [Cahill’s St. ch. 121a, 1] and then said (p. 269):

“This language is squarely applicable to the transfer to Katz and Pillman. The words of conveyance in the bill of sale are complete and purport to sell and convey in bulk all of the stock of merchandise, otherwise than in the ordinary course of trade. No reason is suggested, and none occurs to us, why the Bulk Sales Law does not cover a transaction of this kind. We are referred to no decision in this State precisely in point, but in other jurisdictions, when the matter has been considered, the provisions of the Bulk Sales Law have been held to be applicable.
“In Bailen v. E. P. Badger Import Co., 99 Neb. 24, after extended discussion and reference to decided cases, the court held that such a transfer for the benefit of creditors was within the requirements of the Bulk Sales Law. To the same effect are Gallus v. Elmer, 193 Mass. 106; Sampson v. Brandon Grocery Co., 127 Ga. 454; Humphrey v. Coquillard Wagon Works, 37 Okla. 714; Youghiogheny & Ohio Coal Co. v. Anderson, 186 Mich. 349.
“Following the reasoning in these cases we are of the opinion that the Bulk Sales Law was intended to prevent a dealer disposing of his stock of merchandise outside of the usual course of business, so that it should be taken away from his creditors in general and that the assignment to Katz and Pillman was a sale within the scope of the statute.”

We think the court in that case was misled by the authorities it cited in support of the conclusion there reached. An examination of the cases there referred to discloses that the Supreme Court of Nebraska was composed of seven justices. The opinion in that case was written by Letton, J. (two of his associates concurring), in which it was said that a sale or transfer by a debtor to a trustee for the benefit of his creditors, to be valid, required compliance with the Bulk-Sales Law of that State. There was an opinion by Hamer, J., concurring in the affirmance of the judgment in which he said (p. 33): “I do not think the Bulk Sales Law is in any way applicable to this case.” There were two dissenting opinions, one by Sedgwick, J., and one" by Fawcett, J., Barnes, J., concurring in the opinion written by the latter, which opinions were to the effect that the Bulk Sales Law was not applicable. In the opinion written by Judge Letton he cites the cases of Gallus v. Elmer, 193 Mass. 106; Sampson v. Brandon Grocery Co., 127 Ga. 454; Humphrey v. Coquillard Wagon Works, 37 Okla. 714; Youghiogheny & Ohio Coal Co. v. Anderson, 186 Mich. 349, which will be hereafter referred to. It, therefore, appears that a majority of the judges of the Supreme Court of Nebraska did not hold that the Bulk Sales Law of that State applied where a debtor made an assignment for the benefit of his creditors. On the contrary, it appears that four of the seven judges held that it did not apply.

We will now consider the other cases referred to in the Traeger opinion.

In the Gallus case (193 Mass. 106) a dealer transferred the whole of his stock of merchandise, not in the usual course of business, to one of his creditors in satisfaction of a pre-existing debt. It was held that this was a sale in bulk within the meaning of the Bulk Sales Act of that State and void against creditors, the act having not been complied with. There the transfer of the stock of goods was not made for the benefit of creditors, but was a transfer to one of his creditors for such creditor’s use and benefit only. This sort of sale was the kind declared void unless there was a compliance with the Bulk Sales Act. It is obvious that this case has no application where the transfer is made for the benefit of all the creditors.

The Sampson case (127 Ga. 454) is also not in point. It did not involve an assignment for the benefit of creditors. In that case there was a sale of goods by a debtor to his creditor in an extinguishment of the creditor’s debt.

In the Humphrey case (37 Okla. 714) it appeared that a hardware company was operating a retail store in Oklahoma. It became insolvent and made an agreement with all of its creditors, except one, whereby a stock of hardware, etc., was transferred to one Humphrey for the benefit of his creditors. The trustee afterwards sold the stock of goods and distributed the proceeds to all of the creditors but one, which creditor was unknown to the trustee. This creditor afterwards brought suit against the hardware company and Humphrey was served as garnishee. The court held, among other things, that the assignment for the benefit of creditors was void because it failed to comply with the statute of Oklahoma. And in passing upon the applicability of the Bulk Sales Law of that State, the court held that by the express provisions of the Bulk Sales Act of that State, assignments for the benefit of creditors were specifically excepted. The court there quoted from the statute as follows: “But nothing contained in this act shall apply to transfers made by executors, administrators, receivers, assignees under a voluntary assignment for the benefit of creditors.”

In the Anderson case (186 Mich. 349) the court said (p. 353): “It is therefore unnecessary to decide whether the Sales in Bulk Act applies to and governs a valid assignment for the benefit of creditors.” So that it is clear that none of the cases cited in the Traeger case is authority for the proposition that the provisions of the Bulk Sales Law must be complied with where the goods are transferred for the benefit of creditors.

The Second Division of the Appellate Court, First District, in the Allen case, supra (222 Ill. App. 261), held that the assignment there made by a debtor was not for the benefit of all its creditors, but only for those creditors who consented to its terms. The court followed the Traeger case, to the effect that an assignment for the benefit of creditors came within the Bulk Sales Act. There was no discussion of the authorities other than the Traeger case.

In the Resler case (233 Ill. App. 305) this division of the Appellate Court of the First District followed the Traeger case, holding that an assignment for the benefit of creditors came within the provisions of the Bulk Sales Act. And in the Carney case, supra, we merely refer to the Resler case as an authority for holding that the Bulk Sales Law applied to an assignment for the benefit of creditors.

In the Johnson Co. case, supra (263 Ill. 363), there was a sale of an entire stock in trade without complying with the Bulk Sales Act of 1913. The court said that the sole question was the constitutionality of that act and it was held to be valid. The question now under consideration was in no way involved.

The question under consideration, so far as we are advised, has never been passed upon by our Supreme Court and consideration of the cases as decided by the several Appellate courts of this State, which we have analyzed above, discloses the fact that they were, in our opinion, misled by the authorities cited from other jurisdictions for the reasons above stated. We are of the opinion that the Bulk Sales Law is not applicable where the stock of goods is transferred for the benefit of all the creditors, and the conclusion we have reached is sustained by the following authorities: McAvoy v. Jennings, 44 Wash. 79; Kasper v. Spokane Merchants’ Ass’n, 87 Wash. 447; Stovall Co. v. Shepherd Co., 10 Ga. App. 498; Turner v. Drees Hardware & Furniture Co., 207 Mo. App. 567, 227 S. W. 1085; Eldredge Brewing Co. v. Cocheco Bottling Co., 79 N. H. 41; Blanke Tea & Coffee Co. v. Sargent, 57 Colo. 299.

In the McAvoy case an assignment of a stock of groceries was made for the benefit of creditors. In holding that such sale did not come within the Bulk Sales Law of that State, the court said (p. 86): “The contention that the transfer was void by reason of its being in contravention of what is termed the sales-in-bulk law is untenable, for the reason that this was not a sale within the contemplation of that act. The object of that law was to prevent the vendor, generally a retail merchant, from escaping his responsibilities to his creditors by disposing of all his stock, pocketing the proceeds, and leaving his creditors without redress. But in this case Jennings did not purchase the stock, and under the terms of the agreement was not to pay any portion of the value of the stock, of which he took possession, to the owners. But he simply acted as a trustee so far as the goods assigned to him went, for the benefit of the creditors.” And again the Supreme Court of Washington (87 Wash. 447) held that an assignment for the benefit of creditors was not within the provisions of the Bulk Sales Law of that State; that an assignment for the benefit of creditors was not a purchase of the stock of goods in bulk within the meaning of that act.

To the same effect was the holding of the Appellate Court of Georgia in the Stovall case, where it was said that the purpose of the act was to protect creditors against fraudulent sales. The court there said: “When merchants sell their entire stock of goods to one person, without notice of any kind to their creditors, a fraud is frequently perpetrated upon the creditors; and it was the intention of the Legislature to afford a remedy to the victims of these fraudulent sales. The evil sought to be remedied was the prevention of sales by debtors of their stock in bulk, thus depriving creditors of assets or property out of which to make their claims. The statute is aimed at the fraudulent conduct of the debtor as a vendor. It has no application whatever to an honest bona fide arrangement on the part of the creditors with the debtor to protect themselves by agreeing to a composition of their debts, or to an honest assignment on the part of the debtor for benefit of his creditors.”

The same rule was announced in the Turner case by the Appellate Court of Missouri where a great many of the authorities including the Traeger case, supra, were discussed.

Since we hold that the Bulk Sales Act does not apply to an assignment for the benefit of creditors, it follows the judgment of the municipal court of Chicago must be reversed.

Judgment reversed.

Thomson, P. J., and Taylor, J., concur.