author: Mr. Justice Sullivan Gridley, P. J.,

text:
    Joseph G. Dillon, Appellant, v. Elbert E. Elmore et al., Defendants. Benjamin G. Kilpatrick, as Successor-Trustee to West Englewood Trust and Savings Bank, Appellee.
    Gen. No. 36,986.

      Gridley, P. J., dissenting.
    Opinion filed July 6, 1934.
    Con cannon & Dillon, for appellant.
    Kirkland, Fleming, Green & Martin, for appellee ; William Wilson, B. S. Marimon and L. W. Tuesburg, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

March 11, 1932, complainant, the owner and holder of 12 $1,000 bonds, of a total issue of $175,000 (executed and delivered by Elbert E. Elmore December 26, 1923, maturing 10 years thereafter and secured by a trust deed conveying certain improved real estate to the West Englewood Trust & Savings Bank, an Illinois banking corporation, as trustee) filed a bill in the superior court to foreclose the lien of the trust deed on his own behalf and on behalf of all owners and holders of other bonds of said issue. December 12, 1932, by leave of court, Benjamin Q-. Kilpatrick, claiming that he had duly been appointed as - successor-trustee to said bank, filed his intervening petition in the cause, praying that complainant’s bill be dismissed. To the petition complainant filed a demurrer. June 10, 1933, after argument, the court overruled complainant’s demurrer to the petition and complainant electing to stand on the demurrer a decree was entered dismissing complainant’s bill for want of equity, “without, however, prejudicing the rights of the owner and holder of the bonds described in said bill to participate in and receive his proportionate part of any moneys which may at any time be available for the payment of said bonds.” From the decree complainant prosecutes the present appeal.

Inasmuch as Kilpatrick’s petition or motion to dismiss complainant’s bill is to be treated as a demurrer to the bill and as admitting all well-pleaded averments of fact therein (see Gurnett v. Mutual Life Ins. Co., 268 Ill. App. 518, 520; Leonard v. Arnold, 244 Ill. 429, 432-3), and as on complainant’s demurrer to Kilpatrick’s petition all well-pleaded averments of fact therein are also to be considered as admitted, and as no evidence was heard by the chancellor on the motion, this court in deciding the present appeal must look both to the bill and petition for the material and well-pleaded facts.

In complainant’s bill to foreclose, after alleging, the, execution and delivery by Elmore of the 175 bonds (all maturing on December 26,1933, and bearing interest at six per- cent per annum payable semiannually as evidenced by attached coupons) and his execution and delivery of said trust deed conveying as security the property in question together with the rents, issues and profits thereafter accruing to the West Englewood Trust & Saving’s Bank, as trustee, the trust deed is set out in full, in which there are the following provisions (italics ours):

‘.‘Article 6. . . . That in case of default for a period of 60 days in making payment of any of said bonds, either of principal or interest, then the whole of said principal sum secured hereby shall at once (without notice thereof to any person interested) at the option of the holder of any one of said bonds then unpaid become due and payable, and in case of default in the performance of any other covenant or agreement herein made by said first party and such default continuing for 60 days after written demand by or through the Trustee on said first party for the performance of the covenant so broken, then the whole of said principal sum hereby secured shall at once, at the option (without notice thereof to first party) of the holder or holders of 20% of the bonds herein described then unpaid, become due and payable. . . .

“Article 7. In case of any such default the second party or its successors in trust, or its- or their agents or attorneys, shall have the right (on application of the legal holder of any one of said bonds in case of default for 60 days in the payment. of. principal or interest as above set forth, and on application of the legal holder or holders of 20% of the bonds herein described then unpaid in case-of 60 days’ default in the performance of any other covenant herein made) to enter and také possession of said premises -and to' expel and remove therefrom said - first party and to collect the rents thereof and manage and operate said premises. ...

“Article 8. The foregoing provision for entry and operation is cumulative with the ordinary remedy of foreclosure and upon default being made as provided in this trust deed and upon request in writing of the holder or holders of one or more of the then outstanding bonds it shall be the duty of the Trustee to institute a suit for foreclosure. . . .

“Article 10. It shall not be obligatory upon the Trustee to take possession of said property or to foreclose this trust deed or to do or refrain from doing any act pursuant to the request of any person until such person or the owner of one or more of the bonds then outstanding shall in writing request the Trustee so to act and deposit with the Trustee the bonds so held by him and shall further indemnify said Trustee for its disbursements and fees, but the Trustee may at its election in case of default as aforesaid take possession of and operate said premises whether it has received said request or not and in such case its charges, disbursements and expenses hereunder shall be a first lien upon said premises.

“Article 11. It shall not be the duty of the Trustee to see to the execution or recording of this instrument or to do any act for the continuance of the lien hereof and shall be under no obligation to perform any act hereunder unless it is reasonably indemnified, and it shall have a prior lien on said premises for its outlays, reasonable expenses, and attorneys’ fees and for compensation for any services which it may perform. The exclusive right of action hereunder shall be vested in said Trustee until refusal on its part to act, and no bondholder shall be entitled to enforce these presents in any proceeding in law or equity until after demand has been made upon the Trustee accompanied by tender of indemnity as aforesaid, and said Trustee has refused to act in accordance with such demand. Said Trustee shall not be bound to recognise any person as a bondholder until his bonds have been deposited with said Trustee and until his title thereto has been satisfactorily established.

“Article 12. . . . The Trustee may resign from the trust hereby created by resignation in writing filed in the Recorder’s Office of said County, and in case of a vacancy in the Office of Trustee a successor may be appointed by the holder or holders of a majority of the bonds then outstanding by an instrument in writing duly signed and acknowledged by them and recorded in the Office of the Recorder of Cook County, Illinois, or in case said holder or holders do not agree in the appointment of a neio Trustee within 30 days after such vacancy shall occur then the holder or holders of any of said bonds may apply to the Circuit Court of Cook County, for the appointment of a new Trustee upon such notice as such court shall prescribe to be given in such manner or upon or to such party or parties as such court shall direct or upon such notice as shall be in accordance with the rules and provisions of the court and such Trustee so appointed by such majority in interest of said bondholder or bondholders or by such court shall on his acceptance of his appointment thereby become and be vested with all the rights, powers and estates granted to the party of the second part herein by these presents and without any further assurance or conveyance whatsoever.

Complainant’s bill further alleged in substance that he is the owner and holder of 12 of the bonds (giving their numbers), and of the interest coupons thereof maturing on and after December 26,1931; that default has occurred and continued in the payment of the coupons due December 26, 1931, on the 12 bonds and on the other bonds of the series; that complainant has elected to declare immediately due and payable all of the 175 bonds now outstanding; that no part of the general taxes assessed against the property for the years 1929 and 1930 has been paid; that the property was sold February 24,1932, for the nonpayment of the second instalment of a certain special assessment warrant No. 53328; that there is due to complainant, as the owner of the 12 bonds, $12,360 interest, etc.; that there is also due and owing to the owners of other bonds such sums as may appear unpaid for accrued interest, etc.; that in addition there is or will become due to complainant, or to said other owners of the remaining bonds, all sums advanced or to be advanced for various expenses and costs (enumerating thém); that all of these sums constitute a valid lien upon the property, superior to the rights and interests of any other parties to this suit; that the property is improved with a three-story brick building containing eight stores and 24 offices or apartments, and is of doubtful security for the indebtedness secured by the trust deed; that the bonds and interest coupons so secured, other than those owned by complainant, are owned by divers persons living in widely scattered localities; that one John M. Lang is the owner of $5,000 of the bonds and one M. J. Morrissey of $6,000 of the bonds; that the names of other owners of the bonds are unknown to complainant and cannot be ascertained by him; that the names of the beneficiaries of the trust, upon which the legal title to the property is held by Foreman-State Trust & Savings Bank as successor-trustee, are unknown to complainant and upon diligent search cannot be ascertained by him; that by mesne conveyance the property was by deed, dated May 27, 1927, conveyed to the Foreman Trust & Savings Bank, as trustee, under the provisions of a trust agreement known as trust number 2882; that December 14, 1929, the State Bank of Chicago and said Foreman Bank were duly consolidated under the name of Foreman-State Trust & Savings Bank; that said last named bank as successor-trustee, and under said trust agreement, is now the record owner of the title to the property; but that its interest therein is subject and subordinate to complainant’s rights and the rights of the owners of others .of .'said bonds and coupons not owned by com.plainant. yA,:

Complainant’s bill further alleged in substance that when on, December 26, 1923, the .trust deed in question was executed and delivered to the West Englewood Trust & Savings Bank, as trustee, that bank was a duly organized Illinois banking corporation and duly qualified to act as a trust company, and continued to be so qualified until June 9, 1931; that on that day, the auditor of public accounts of Illinois found that the bank’s condition was such that its capital stock had become impaired, etc., and said auditor on June 9, 1931, assumed control of the bank and appointed one Irwin T. Gtilrutk as receiver thereof; that July 22, 1931, Grilruth’s appointment as such receiver was duly approved by the superior court of Cook county in a suit instituted by the auditor July 20, 1931, wherein the auditor prayed that said bank be dissolved, etc., in accordance with the statute, etc.; that thereafter Grilruth, having qualified as receiver of the bank, and pursuant to the provisions of section 11 of the Illinois Banking Act, Cahill’s St. ch. 16a, 11, did, by instrument dated March 7, 1932 (i. e., four days before complainant’s present bill was filed), “resign on behalf of said Bank the trust created by said trust deed,” which instrument was duly recorded on the same day ; and that “by reason of the appointment of said receiver (G-ilruth), the said West Englewood Bank did, on July 22,1931, become, and since that date has been, and now is, disqualified from acting as Trustee under the terms of said trust deed, and that no person has been appointed to succeed said West Englewood Trust & Savings Bank, as Trustee under said trust deed.”

The prayer of complainant’s bill is that the various parties named as defendants answer the bill, etc.; that a receiver of the property be appointed to collect the rents, issues and profits; that an account be taken under the court’s direction of the amount due to complainant as owner of said 12 bonds and matured coupons, and of the amounts due to the respective owners of other bonds and coupons, etc.; that in,default of payment thereof the usual decree of foreclosure and sale be entered, etc.; that the court, “if it deem the same necessary, appoint a Successor-Trustee to said West Englewood Trust & Savings Bank”; that “said Successor-Trustee, if appointed, may be made a party to this proceeding”; and that complainant “may have such other and further relief as the nature of his case may require,” etc.

In the intervening petition of Benjamin C. Kilpatrick, as successor-trustee to West Englewood Trust & Savings Bank, verified by an agent and filed December 12, 1932 (i. e., about nine months after the filing of complainant’s bill), after alleging the closing of the West Englewood Bank by the Illinois State auditor, the appointment of Gilruth as receiver of the bank, and the receiver’s resignation of the bank’s trusteeship under the trust deed on March 7, 1932, all as averred in complainant’s bill as aforesaid, further alleged in substance as follows:

3. That on June 17, 1932 (i. e., more than three months after the filing of complainant’s bill) the holders of a majority in amount of bonds outstanding and secured by the trust deed, “by an instrument in writing signed and acknowledged by them and accepted in writing thereon by your petitioner,” recorded June 18, 1932, “appointed your petitioner as successor-trustee to said West Englewood Bank under said trust deed”; and that “by reason of the foregoing and of the terms of said trust deed, petitioner became and is now vested with all the powers, rights, estates and interests of said original trustee.” A copy of said appointment of successor-trustee “is attached hereto, marked Exhibit ‘B’, and made a part hereof

4. That said trust deed provides, inter alia as follows : (Here is set forth in full that portion of Article 12, above quoted in this opinion.)

5. That complainant’s said bill “was filed on March 11,1932, but four days after the resignation of Grilruth as receiver in behalf of said West Englewood Bank, Trustee under said trust deed.”

6. That petitioner, as successor-trustee, on or about June 18, 1932, entered into and took possession of the real estate in question, and “is and has been collecting the rents, issues and profits from said premises for the benefit of all of the holders of bonds secured by said trust deed, including complainant. ’ ’

7. That the “holder of one of the unpaid bonds,” on or about June 20, 1932, by an instrument in writing delivered to petitioner, declared the whole of the principal secured by the trust deed to be at once due and payable and “requested petitioner to institute suit for the foreclosure of said trust deed, for the benefit of the owners and holders of all of the unpaid bonds secured thereby, agreeing to indemnify petitioner,” etc. “A copy of said demand to foreclose is hereto attached, marked Exhibit ‘O’, and made a part hereof.”

8. That in compliance with the request and on June 20, 1932, petitioner filed his bill to foreclose said trust deed in the superior court against Elmore et al., cause No. 559,902, a copy of which bill is attached hereto, marked Exhibit “D”, and made a part hereof,

9. That complainant’s bill in the present case “shows upon its face that the exclusive right of action is in the trustee appointed under said trust deed, the provisions of which trust deed relating thereto being as follows(Here are set forth those provisions of Article 11 of the trust deed which are above set forth in this opinion and which are there italicized.)

10. That complainant’s bill “alleges no demand upon the Trustee to foreclose, nor does it allege any demand upon said West Englewood Bank, or upon said G-ilruth as receiver thereof, to resign said trusteeship under the trust deed, nor does it allege any refusal, on the part of said West Englewood Bank as trustee, or on the part of said Gilruth as receiver thereof, to resign said trusteeship under said trust deed for and on behalf of said West Englewood Bank as trustee”; but that, on the contrary, complainant’s bill alleges “that by reason of the appointment of said receiver (G-ilruth), the said West Englewood Bank did, on July 22,1931, become, and since that date has been, and now is, disqualified from, acting as Trustee under the terms of said trust deed, and that no person has been appointed to succeed said West Englewood Trust & Savings Bank, as Trustee under said trust deed.”

The prayer of the intervening petition is (a) that petitioner be given leave to file instanter said petition, and (b) that “an order be entered herein dismissing complainant’s bill of complaint filed in the above entitled cause.”

In urging an affirmance of the decree appealed from, which dismissed for want of equity complainant’s bill to foreclose the lien of the trust deed involved, after the court had overruled complainant’s demurrer to Kilpatrick’s intervening petition as the claimed successor-trustee to the West Englewood Bank, Kilpatrick’s counsels’ main contention is, in substance, that complainant (as the owner and holder of 12 of the 175 bonds secured by the trust deed) had no right to file the bill on behalf of himself and other owners and holders of the defaulted indebtedness because, under the provisions (above quoted in italics) of Article 11 of the trust deed, the exclusive right of action was vested in the named trustee, of which Kilpatrick afterward became the duly appointed successor and acted as such.

Counsel for complainant, in urging a reversal of the decree appealed from, after stating that the admitted facts disclose that at the time complainant filed his bill the office of trustee under the trust deed was vacant, contends, in substance (1) that the provisions of Article 11 of the trust deed above mentioned are not to be applied to the admitted facts, and complainant as one of the bondholders had an absolute right to file his foreclosure bill, because: (a) Where the office of the trustee is vacant and the only relief sought is the proper foreclosure of the trust deed it is not necessary to have a successor-trustee appointed merely for the purpose of bringing the foreclosure proceeding, and the better practice is to have the owner or owners of the indebtedness institute such proceeding; (b) it is the recognized law that courts never require the doing of a useless act even in cases involving contractual obligations, and in view of the provisions of Article 8 of the trust deed (wherein it is made the duty of the trustee, upon default having occurred in the payments of the indebtedness, to institute a foreclosure proceeding upon the written request “of the holder or holders of one or more of the then outstanding bonds”), it would be the doing of a useless thing on the part of such holder or holders of the indebtedness to proceed to appoint a successor-trustee' merely for the purpose of afterward demanding of such appointee that he institute a foreclosure proceeding, when under the law the foreclosure proceeding could just as well be instituted by such holder or holders; and (c) whether or not complainant had the right to file his bill to foreclose must be determined by the facts existing at the date of such filing, and, if such bill was rightfully filed, the fact that Kilpatrick on June 17, 1932 (about three months after the filing of complainant’s bill), was appointed successor-trustee by a committee of other bondholders, could not change the former existing situation, and should not militate against complainant maintaining his bill. And complainant’s counsel further contend in substance (2): That the purported appointment of Kilpatrick, as successor-trustee, was not made in accordance with the provisions of the trust deed in that (a) it was not made within 30 days after March 7, 1932 (when G-ilruth as receiver of the West Englewood Bank resigned its said trust); (b) that the appointment was made by the members of a bondholders’ committee, and not by the bondholders themselves, who should act personally and could not delegate to others their power of appointment given by the trust deed; and that, hence, Kilpatrick, as a successor-trustee so appointed, is in no position to contest complainant’s right to file the present foreclosure bill on his own behalf and that of other bondholders similarly situated.

Complainant urges that the provisions of Article 11 of the trust deed vesting the trustee with the exclusive right to institute foreclosure proceedings until its refusal to act, and prohibiting an individual holder of a bond or bonds from filing a bill to foreclose, either in his own behalf or as a representative of all of the bondholders, until after the wrongful refusal by the trustee to comply with the bondholder’s demand to foreclose, must be disregarded and held for naught because of the admitted facts in this cause, and that he as one of the bondholders had an absolute right to file his foreclosure bill. What are the admitted facts? It is true that the interest coupons due December 26, 1931, of all of the outstanding bonds were in default and that any bondholder had the right under the terms of the trust deed because of that default to accelerate the payment of all of the bonds. It is also true that a vacancy existed in the office of trustee by reason of the resignation of the insolvent bank trustee by its receiver, Gilruth, just four days prior to the filing of complainant’s bill to foreclose. These are the admitted facts relied upon by complainant. But it is also an admitted fact that the trust deed anticipated that such a vacancy might occur and by its terms the parties to the contract, including complainant, specifically provided the method and manner of electing a successor-trustee. The majority of the bondholders had the positive right and privilege to fill the vacancy within 30 days after its occurrence without interference of any kind on the part of any bondholder or minority bondholders. After the expiration of 30 days any bondholder might petition the circuit court to appoint such successor. If no bondholder availed himself of his right to so petition the court, the majority of the bondholders had the continuing right to make the appointment, which was exercised by such majority in apt time in this case. The 30 days above referred to is not a limitation upon action by the bondholders, but is a limitation upon the holder of a bond applying to the circuit court. This cannot be done until after the expiration of 30 days. (Valauskis v. Crane & Moreland Real Estate Improvement Co., 270 Ill. App. 611 [Abst.].)

It is difficult to reconcile complainant’s asserted right to file a bill to foreclose the trust deed with the restriction therein contained that precluded him from even applying to the court for the appointment of a successor-trustee until the vacancy in the office of trustee had existed for at least 30 days.

Complainant’s bill contained no allegation that he could or would have suffered any harm or been deprived of any right by conforming to the plain, unmistakable terms of the trust deed to which he was a party and the orderly procedure outlined therein.

Complainant does assert that where the office of trustee is vacant and the only relief sought is the proper foreclosure of the trust deed, it is not necessary to have a successor-trustee appointed, but that the better practice is to have the owner or owners of the indebtedness institute such proceeding. In support of this contention he relies upon the cases of Dorn v. Colt, 180 Ill. 397; Cheltenham Improvement Co. v. Whitehead, 128 Ill. 279; Surine v. Winterbotham, 96 Ill. App. 123; Town v. Alexander, 85 Ill. App. 512; Frink v. Neal, 37 Ill. App. 621; Lill v. Neafie, 31 Ill. 101; Waughop v. Bartlett, 165 Ill. 124; Warnecke v. Lembca, 71 Ill. 91; and Morse v. Holland Trust Co., 184 Ill. 255. We have carefully examined these cases and find that the provisions of the mortgage or trust deed therein involved are not similar to the provisions of the trust deed in the case before us. In these cases the trust deed contained no restrictions similar to those contained in Article 11 above quoted. That article expressly reposed in the trustee or properly appointed successor-trustee the exclusive right of action under the trust deed in behalf of all the bondholders and prohibited action by any 'bondholder or bondholders except upon the trustee’s refusal to act upon proper demand. The authorities of other jurisdictions cited in support of the instant contention recognized the general rule that parties to a trust deed are bound by its terms and restrictions, but because of the peculiar and special circumstances prevailing in those cases justified permitting the holder or holders of the notes or bonds involved to foreclose rather than the trustee or successor-trustee, to circumvent fraud and collusion or to avoid a miscarriage of justice, whereby the rights of the owners of such notes or bonds would be impaired or destroyed and such owners left without reasonable means of redress.

It has been uniformly held by this court in passing upon provisions similar to those contained in this trust deed that no individual bondholder is entitled to file a bill to foreclose except upon the specified conditions. (Valauskis v. Crane & Moreland Real Estate Improvement Co., supra; Reliance Bank & Trust Co. v. Dalsey, 263 Ill. App. 546.) The provisions of the trust deed limiting the right of a single bondholder to foreclose are valid. (Rosenzweig v. Roitman, 266 Ill. App. 124; Seibert v. Minneapolis & St. L. Ry. Co., 52 Minn. 148, 53 N. W. 1134; Chicago, Danville & Vincennes R. Co. v. Fosdick, 106 U. S. 47; Muren v. Southern Coal & Mining Co., 177 Mo. App. 600, 160 S. W. 835; Pearlman & Co. v. Lincoln-Belmont Bldg. Corp., 251 Ill. App. 135; Belleville Savings Bank v. Mercantile Trust Co., 194 Ill. App. 175; Romberg v. Interstate Independent Telephone & Telegraph Co., 200 Ill. App. 509.)

It is not a question of whether complainant could file a bill to foreclose just as efficaciously as the successor-trustee, but rather of his absolute lack of authority to file such a bill under the terms of the trust deed in question.

But complainant asserts that the law will not require the doing of a useless act and that if the successor-trustee was appointed under the provisions of the trust deed it would be his duty, default having occurred in the payment of the indebtedness, to institute a foreclosure proceeding upon the written request of the holder or holders of one or more of the otitstanding bonds, and that since complainant could file the bill to foreclose just as well it would be entirely useless to appoint a successor-trustee for that purpose. It is sufficient answer to this contention to state that when this trust deed was executed the parties to the contract contemplated that a disinterested trustee could and would better serve the interests of all of the bondholders than would any individual bondholder. Complainant’s resort to the maxim that a court of equity will not require the doing of vain and useless things cannot avail under the facts of this case. As applicable to this case the rule might be better stated to be that equity will not do that which will be of no benefit to the party asking it and only be a hardship on the party coerced. Compelling compliance with the terms of the trust deed means a distinct advantage and benefit to all holders of outstanding bonds and could not possibly result in any harm or hardship to complainant who will share in the distribution of, the proceeds of the foreclosure along with the holders of all other outstanding bonds. No case has been cited by complainant under the useless act doctrine that is at all comparable with this case on the facts.

The general rule, we think, as applied to contracts is stated in 13 Corpus Juris, paragraph 744, page 661, as follows:

“A demand for a performance is unnecessary where it is apparent that it would be unavailing, as where there has been a prior absolute refusal, or where the party from whom performance is due has placed it out of his power to perform; or where demand has been waived. ’ ’

The record presented here fails to disclose that a demand for performance after the proper appointment of a successor-trustee would be unavailing. In the instant case we find neither refusal to perform, inability to perform nor any waiver of demand of performance. It also may well be that, in addition to what complainant characterizes as the mere passive duty of the successor-trustee of filing the bill to foreclose, such trustee will be called upon to perform some very active duties for the protection of all the bondholders, if and when a sale of the property under foreclosure takes place and thereafter. (Straus v. Chicago Title & Trust Co., 273 Ill. App. 63.)

Complainant concedes that he could not qualify for any active duty of the trustee, but counters with the assertion that his bill contained a prayer for the appointment of a successor-trustee if the court deemed such an appointment necessary. The difficulty with "this position is that complainant’s bill was filed only four days after the vacancy occurred and at a time when he had no more right to petition for the appointment of a successor-trustee than he did to file the bill to foreclose. Under the terms of the trust deed complainant’s bill afforded the trial court no jurisdiction to appoint a successor-trustee.

If complainant’s position in this cause is tenable, the same argument might just as consistently and with as much force be advanced in favor of the proposition that an individual bondholder had the right, as the representative of all the bondholders, to file a bill to foreclose when no vacancy existed in the office of trustee, when the only relief sought was the proper foreclosure of the trust deed. While there was a vacancy in the office of trustee at the time complainant’s bill was filed, the trust deed anticipated such a contingency and provided the method and manner of appointing a successor-trustee to fill the vacancy. If complainant’s contentions were sound the entire purpose served by trust deeds would be destroyed. Their provisions could be emasculated and abrogated at will. Contracts are not made with the expectation that they will be broken, but with the expectation that they will be performed. (Williston on Contracts, paragraph 768, page 1467.)

We adhere to our opinion, frequently expressed, that where the trust deed gives exclusive right to the trustee to institute foreclosure proceedings no individual bondholder may do so. To permit individual bondholders each to file his bill and move for the appointment of a receiver would make confusion worse confounded. Aside from the question of confusion, complainant’s bill to foreclose and request for the appointment of a receiver must rest upon some clear right. This right he did not have when he filed his bill. (Valauskis v. Crane & Moreland Real Estate Improvement Co., supra.)

Complainant’s contention that the successor-trustee ’s appointment was not made in accordance with the provisions of the trust deed, in that it was not made within 30 days after the vacancy occurred, is without merit. We have heretofore indicated our views in this regard.

Complainant’s final contention that the successor-trustee’s appointment was made by the members of the bondholders’ committee and not by the bondhold: ers themselves, who should act personally and could not delegate their power of appointment, and that, therefore, Kilpatrick’s appointment as successor-trustee being void gave him no right to contest complainant’s right to file his bill in behalf of himself and other bondholders similarly situated, is likewise without merit.

In support of this last contention complainant relies upon Holcomb v. Nettleton (Tex. Civ. App.), 35 S. W. (2d) 745; Scottish American Mtg. Co. v. Butler, 99 Miss. 56, 54 So. 666; and Watson v. Perkins, 88 Miss. 64, 40 So. 643. In the Holcomb case, where the trust deed contained a power of sale and provided for the appointment of a substitute trustee in certain contingencies by the holder of the secured notes, and where the notes were neither assigned nor delivered, but the trust deed was transferred to an attorney in fact who assumed to sell the property under the terms of the trust deed, the court, quoting from Michael v. Crawford, 108 Tex. 352, 193 S. W. 1070, by which it held itself bound, said “authority to make a substitution of trustees without other formality than an appointment in writing, requires the appointment to be made by the holder of the note.” In the Watson case, under a practically similar factual situation, the court held: “But since such power of appointment has been held to be purely personal and one that cannot be delegated, the attorney in fact of the holder of these notes had no right to name a ‘substitute’ trustee, and such an appointment being void, the sale made by the trustee was void.” In the Scottish American Mtg. Co. case, it was held that the attorney in fact of the beneficiary of the trust deed could not appoint a “substitute” trustee where the deed provided for the appointment “by the beneficiary or any holder of the notes secured.” In none of these cases was the question presented for determination analogous to that presented here. In fact all three cases and the cases cited therein recognized the right of the holders of the secured indebtedness to appoint a “substitute” trustee.

In the instant case complainant strenuously insists that under the provision in Article 32 of the trust deed that a holder or holders of a majority of the outstanding bonds had the right to appoint, a successor-trustee the parties to the contract meant the owner or owners of such bonds. No case has been cited and a diligent search has failed to reveal one that has ever so held in construing similar provisions of a trust deed. This court held in Schatzkis v. Rosenwald & Weil, 267 Ill. App. 169:

“It is undisputed that the bonds described in the demand had been deposited with and were in the possession of the Chicago Title & Trust Company as depositary for the Bondholders’ Protective Committee. Possession of the bonds was prima facie evidence of ownership. (Hoff v. Dougherty, 243 Ill. App. 159, and cases cited.) ”

In Hoff v. Dougherty, supra, the court held that possession of a negotiable note is prima facie evidence of ownership. If, under the terms of the trust deed, ownership of the bonds was requisite to the appointment of a successor-trustee, we would be impelled to conclude that the individuals comprising the bondholders’ protective committee were, at least, prima facie clothed with ownership for the purpose of appointing a successor-trustee.

If the rule were otherwise how could the bondholders function to protect their rights under the trust deed? Complainant alleged in his bill “that the bonds and interest coupons secured by such trust deed . . . are owned by divers persons living in widely scattered localities.” These bonds were payable to bearer and “shall pass by delivery'unless registered on the books of the West Englewood Trust & Savings Bank.” It is admitted that the majority of the bonds were delivered to individuals composing the bondholders’ protective committee and that those individuals were the holders of such bonds at the time the successor-trustee was appointed by them. Being the holders of the bonds, we think that they had the right under the trust deed to appoint a successor-trustee. The efficacy of a bondholders’ protective committee as an instrumentality for protection of noteholders or bondholders who are numerous, widely scattered and unorganized, and, therefore, impotent to effectively protect their own interests from sacrifice at a forced sale precipitated by a third party in a demoralized market, has generally been recognized by the authorities in all jurisdictions. (Straus v. Chicago Title & Trust Co., supra.)

The following well pleaded averments of the successor-trustee’s intervening petition are admitted by complainant’s demurrer:

“That on to-wit: June Í7th, 1932, the holders of a majority in amount of bonds outstanding and secured by said trust deed, by an instrument in writing signed and acknowledged by them and accepted in writing thereon by your petitioner, and recorded in said Recorder’s office on June 18, 1932, as Document No. 11104681, appointed your petitioner as successor-trustee to said Bank under said trust deed and by reason of the foregoing and of the terms of said trust deed became and is now vested with all the powers, rights, and interests of said original trustee. A copy of said appointment of successor-trustee is attached hereto, marked Exhibit ‘B’ and made a part hereof.”

We have carefully examined Exhibit “B” and found nothing therein to detract from or alter the force and sufficiency of the admitted facts as above alleged. Further technical criticisms are made which are without merit. The facts stated in the intervening petition and admitted by complainant show the proper appointment and acceptance of a successor-trustee, and that complainant’s bill to foreclose was filed by him without even the color of right.

For the reasons indicated, we are of the opinion that the chancellor was justified in overruling complainant’s demurrer to the successor-trustee’s intervening petition and dismissing complainant’s bill for want of equity.

The decree of the superior court is affirmed.

Affirmed.

Scahlah, J., concurs.

Gridley, P. J.,

dissenting: On May 1,1934, an opinion of this court was filed and an order entered, for reasons stated in the opinion, that the decree appealed from be “reversed” and that the cause be “remanded with directions ... to sustain complainant’s demurrer to said intervening petition and to dismiss said petition, and for such further proceedings on complainant’s bill as to equity shall appertain.” Subsequently, a rehearing was allowed. After due consideration, I am unable to agree with the conclusions reached by a majority of the court in the present opinion. I still think that the decree appealed from should be reversed and the cause be remanded with directions as stated.


source: Caselaw Access Project

author: Mr. Justice Davis

license: Public Domain

text:
    George M. Monroe, Defendant in Error, v. Rolland N. Wear, Plaintiff in Error.
    Gen. No. 8,793.

      Opinion filed July 26, 1934.
    Rehearing denied October 2, 1934.
    Dowhihg & Helfrich, for plaintiff in error.
    Walker & O’Harra, for defendant in error.
   Mr. Justice Davis

delivered the opinion of the court.

Plaintiff in error, Holland N. Wear, sued out a writ of error directed to the circuit court of McDonough county, to review a judgment of that court rendered against him and in favor of George M. Monroe, defendant in error, for the sum of $15,000 damages assessed by the verdict of a jury finding him guilty of wilful and wanton misconduct which resulted in injury to the defendant in error.

The declaration consists of four counts, the first of which charges general negligence and alleges due care on the part of the plaintiff, but was withdrawn from the consideration of the jury, so that the case went to the jury on the three remaining counts, the first of which charged:

That on October 25,1931, the defendant Wear owned a certain Chevrolet automobile and that he invited the plaintiff Monroe to ride with him in his said automobile from the City of Macomb, Illinois, to the City of Davenport, Iowa; that plaintiff accepted, and that they left the City of Macomb in said automobile together with two other persons; that the defendant was driving and operating said automobile upon said journey and that plaintiff was riding as a guest therein; that at a point in Rock Island county upon the route from Macomb to the City of Davenport, and being along State Route No. 3, the said defendant was driving near the town of Reynolds; that said defendant wilfully and wantonly operated, managed and drove said automobile at a place aforesaid so as to cause the same to collide with a certain automobile then and there being driven in a westerly direction upon said State Route No. 3, and as a result of the collision of said automobile, through the wilful and wanton misconduct of the defendant, the plaintiff was thrown with great force and violence and certain parts of his body, to wit: his jaws, arms, shoulders, head, legs and neck struck upon and against certain parts of said automobile and the plaintiff was thrown with great force and violence from said automobile to and upon the highway.

The second of which said counts is similar to the first except that it charges that it was the duty of the defendant in the operation and running of said automobile to use proper care and caution and not to wantonly and wilfully injure the plaintiff, yet the defendant, not regarding his duty in that behalf, wantonly and wilfully and without regard for the safety of the plaintiff ran his said automobile at a speed of, to wit: 60 miles per hour on the left side of the center line of said State Route No. 3 and upon and against a certain other automobile traveling in a westerly direction upon said highway.

The last count, charging wilful and wanton misconduct on the part of the plaintiff in error, is like the first of said counts except that it charges that it was the duty of the defendant to operate his automobile on the right-hand side of the center line of said concrete slab commonly called the right traffic lane, which would be on the south side of said highway, at the place aforesaid, the said concrete slab running in an easterly and westerly direction, and that it became and was the duty of defendant to so operate his said automobile as not to injure the plaintiff through wanton and wilful misconduct, yet the defendant not regarding his duty in that behalf wantonly and wilfully and without regard for the safety of the plaintiff drove his said automobile on the left-hand side of the center line of said concrete slab and onto the left-hand traffic lane thereof ; that at the time and place aforesaid another automobile driven by another person traveling in a westerly direction upon its right-hand side of the center line of said pavement and upon its right-hand traffic lane collided with the said car of the defendant.

Plaintiff avers that, by reason of the collision aforesaid, so caused by the wanton and wilful misconduct of defendant, he was injured, etc.

The parties on the trial of said cause stipulated as to the physical conditions that existed at the time and place of said accident, and which stipulation is in part as follows:

That the collision between the car of the defendant and the car of Virgil Eakman occurred about two and one-fourth miles west of Reynolds, on State Route No. 3, which is a highway paved with concrete of 18 feet in width, with two traffic lanes divided by a black line in the center; that the collision occurred near the west-crest of a depression or swale approximately 1,500 feet wide, from crest to crest, over which said hard surfaced road passed from east to west; that it is approximately 700 feet from the place of the collision to the lowest point on said road at the bottom of said depression or swale and the lowest point of said hard road in said depression is approximately 40 feet below the level of the west crest of said depression; that said Route No. 3 at the place of the collision is on a straight line due east and west from about one mile east of the place of the collision, except for the depression mentioned, and for about one mile west’ of the place of the collision, and the ground over which said road passes is level prairie ground; that an automobile such as a Chevrolet coupe traveling on said road at the lowest point of said depression or swale is out of the line of vision of a person in an automobile on said hard road at a point on said road 200 feet west of the west crest of said depression, so that a person approaching said depression from the west cannot see an automobile on said road at the bottom of said depression from a point 200 feet west of said depression.

It appears from the testimony of the witnesses that the collision between the car owned by Virgil Eakman and the car owned by the plaintiff in error, Rolland N. Wear, and in which the defendant in error was riding, occurred at the west crest of this depression about 700 feet from the lowest point.

At the time of the accident and just prior thereto there were five automobiles within sight of this place, two of these cars approaching from the east, the first driven by Eakman and the other by the witness Swenson, and three of the cars approaching from the west, the first being driven by -the witness Babcock and the next by the plaintiff in error, Wear, and the other being driven by Kathryn Davis. Eakman was alone in his car and Swenson was accompanied by Samuel Moore, and in the car driven by Ben Babcock was the witness Rose, and in the car of the plaintiff in error was his wife, the defendant in error and Zelma Stevens, and in the Davis car there were three persons besides the driver, Mrs. Marietta Davis and a Mr. and Mrs. Morrow.

At the time of the accident the Babcock car was part way down over the hill, the west slope; the occupants of this car did not see the collision but heard the crash. The Davis car was about a block and a half from the scene of the accident and the Swenson car was about a block away and at the bottom of the depression.

Virgil Eakman testified that when I came down the hill on the east side of the depression there were three or four cars coming east and I was going west, and about the time I got to the top of the hill I just passed one car, just got past it and then another car pulled directly in front of me and that is when the accident occurred; that is all I remember until I came to on the bank.

Plaintiff in error, Wear, testified that just before the scene of the accident I got up close to a car and the car swerved over the black line and I did not know what it was going to do, whether it was going across or stop. I throwed on the brakes and he pulled back in front of me and slowed down and I had to turn out, — either hit the car or turn out.

Some of the witnesses testified that there was no car immediately in front of the Wear car. It appears that there is a conflict in the testimony as to whether any car was immediately in front of the car of plaintiff in error just prior to the time of the accident and as to whether the plaintiff was compelled to suddenly turn out in order to avoid hitting ,it.

The plaintiff in error contends that there was no evidence introduced, nor inferences deducible from evidence introduced, even tending to show that there was misconduct, wilful, wanton or otherwise, on the part of defendant, Holland N. Wear, which caused the accident or contributed to the injury of the plaintiff, and that the court erred in not directing a verdict in favor of the defendant.

The defendant in error, insists that this question is not properly presented for review by this court because the plaintiff in error at the close of all the evidence did not submit, with his motion for a directed verdict, an instruction and did not procure a ruling upon any instruction at that time and thereby waived the question of whether there was any proof to sustain defendant in error’s case.

From an examination of the bill of exceptions as set forth in the abstract of record it appears that at the close of all the evidence the defendant (plaintiff in error) submitted a motion in writing to the court and moved the court to exclude the evidence and instruct the jury to return a verdict finding the issues for the defendant for the reason that said evidence is insufficient in law to support the cause of action set forth in the declaration or either count thereof, which motion was overruled by the court.

Nowhere in the bill of exceptions does it appear that an instruction in writing was tendered with this motion and refused by the court.

Plaintiff in error contends that a written instruction was offered at the time the motion was made at the close of all the evidence and that it accompanied said motion, as shown by the common law record.

While it is true that the common law record shows that such instruction was tendered in connection with said motion, yet an instruction tendered with a motion to direct a verdict, like all other instructions, with the ruling of the court thereon, must be shown by the bill of exceptions and, if not so shown, the ruling of the court is not preserved for review. Greenwell v. Hess, 298 Ill. 459, 461.

Under the provisions of the Civil Practice Act which became effective on January 1, 1934, Cahill’s St. ch. 110, If 129 et seq., the distinctions between the common law record, the bill of exceptions and the certificate of evidence, for the purpose of determining what is properly before the reviewing court, are abolished, but the judgment in this case having been entered prior to January 1, 1934, it must be reviewed in accordance with the law then in force.

The plaintiff in error not having tendered an instruction in writing with his motion, made at the close of all the evidence, for an instructed verdict, the question of law, therefore, as to whether there is any evidence in the record fairly tending to prove the plaintiff’s cause of action has not been preserved by the plaintiff in error for review in this court.

In passing upon this question in the case of Variety Mfg. Co. v. Landaker, 227 Ill. 22, 24, the Supreme Court said:

“In cases of this character, where a party defendant desires to preserve the questions whether the evidence fairly tends to establish a cause of action or a defense, for review in this court, as questions of law, it can only be done by the defendant moving the court, at the close of all the evidence, to instruct the jury to return a verdict for the defendant, and by accompanying the motion with an instruction in writing to find for defendant. The defendant in this case made a motion at the close of all the evidence for a directed verdict, but did not accompany its motion with an instruction in writing to the jury to find for the defendant. The questions of law, therefore, whether the evidence fairly tended to show that the appellant, through its servants, was guilty of actionable negligence or the appellee’s intestate was guilty of contributory negligence have not been preserved by the appellant for review in this court upon this record.”

Plaintiff in error further contends that the court erred in giving to the jury the fourth instruction tendered by defendant in error and which was as follows:

“The court instructs the jury that in this case it is not incumbent upon the plaintiff to prove that he was in the exercise of due care and caution for his own safety. If you believe from a preponderance of the evidence in this case that the injuries, if any, shown by the evidence to have been sustained by the plaintiff were the direct result of the wilful and wanton acts of the defendant in the operation of the defendant’s automobile, then the fact that the plaintiff was also guilty of negligence would not defeat the plaintiff’s right of recovery. Negligence on the part of the plaintiff which may contribute to the injury is no defense if the acts of the defendant causing the injury were wilful and wanton.”

This instruction as framed plainly assumes that the defendant was guilty of wilful and wanton misconduct. It did not require the jury to believe from the evidence that the defendant was guilty of wilful and wanton misconduct in the operation of his automobile, but contained the statement that if they believed the injuries sustained by the plaintiff were the direct result of the wilful and wanton acts of the defendant in the operation of his automobile, that negligence on the part of the plaintiff would not defeat the plaintiff’s right of recovery.

By this instruction the jury were also told that: “Negligence on the part of the plaintiff which may contribute to the injury is no defense if the acts of the defendant causing the injury were wilful and wanton,” and, “that in this case, it is not incumbent upon the plaintiff to prove that he was in the exercise of due care and caution for his own safety.”

The plain inference to be drawn from this instruction is that the acts of the defendant were wilful and wanton and therefore it was unnecessary for the plaintiff to prove that he was in the exercise of due care and caution for his own safety and the jury would be warranted in so concluding.

The effect of this instruction was to take from the jury the determination of the real question at issue, the question of fact as to whether the defendant was guilty of wilful and wanton misconduct which contributed to the injury of the plaintiff.

Defendant in error in defense of this instruction says: ‘ ‘ This suit is one counting on wilful and wanton misconduct only, and contributory negligence is not an element to be considered.”

The giving of this instruction, which admittedly instructs the jury as to an issue that was not involved in the case, could only tend to confuse the jury and in no way assist them in arriving at a proper verdict, and should not have been given.

The sole function of instructions is to convey to the minds of the jury the correct principles of law applicable to the evidence submitted to them, in order that, having determined the final state of facts from the evidence, the jury may, by the application of the proper legal principles, arrive at a correct conclusion according to the law and evidence, and nothing should be given them unless it will promote such object.

Where, as in this case, the evidence is conflicting upon a material question at issue, and even though the finding of the jury is not clearly against the weight of the evidence, yet if the jury have not been properly instructed the verdict of the jury will be set aside, Franks v. Matson, 211 Ill. 338-343.

For the error indicated in the giving of said instruction the judgment is reversed and the cause remanded to the circuit court of McDonough county for a new trial.

Reversed and remanded.


author: Mr. Justice Dove

text:
    Review Printing and Stationery Company, Appellant, v. William H. McCoy et al., Appellees.
    Gen. No. 8,798.
    Opinion filed August 24, 1934.
    Welsh & Welsh, for appellant; Vail, Mills & Armstrong, of counsel.
    C. A. Pedderson and Hall & Dusher, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

The sufficiency of the allegations of an additional count to plaintiff’s declaration was challenged by a general demurrer. Upon a hearing, the demurrer was sustained and plaintiff electing to stand by its additional count, the same was dismissed and from that judgment an appeal has been perfected to this court.

This additional count alleged that on August 3,1921, a written agreement and a declaration of trust was executed by Reuben H. Donnelly, Harry M. Johnson, John H. Camlin, Mary A. McCoy, Mary M. McCoy and Walker K. Frost. This instrument is set forth in haec verba in the additional count, and by its provisions it appears that Mary A. McCoy, Mary M. McCoy and Walter K. Frost were referred to therein as subscribers and they appointed the other three parties to the instrument as trustees. It was provided that the trustees should be known as and use the name of McCoy Directory Company, unincorporated, and under that name and style the trustees were to transact the business as provided in said, instrument. It further appears thereby that Mary A. McCoy at that time owned a certain business together with certain personal property, furniture, plats, records, accounts and bills receivable, directories and data therefor, known as the McCoy Directory Company, which was located in Rockford, Illinois; that Walter K. Frost on that date purchased a nine-fortieths interest therein and Mary M. McCoy had rendered various services to said business; that for a valuable consideration the instrument evidences that Mary A. McCoy sold and assigned to Donnelly, Johnson and Camlin all the properties and business of the McCoy Directory Company and they accepted the same and engaged to manage, carry on and control the business and distribute the profits as therein provided. Section 17 of the declaration of trust provided that no one of said trustees should be personally liable for any of the acts of the trustees or of any one of them, and in the administration of the trust, the trustees should not be under personal obligation or liability of any kind, name or nature for any accident, mistake or want of judgment other than wilful or criminal use, misuse or abuse of said trust. Section 20 provides that “all and everyone having any relation to or transaction with, the said trustees are hereby put on notice that, except as herein limited, the said trustees or their successors in the trust, and the subscribers hereto and beneficiaries hereunder are in no way personally liable for any of the transactions of this trust. . It is further provided that in all contracts and agreements entered into by the Trustees for the said trust, specific mention shall be made therein of this trust to the end that any and all parties must look solely to the trust estate and the trust funds for any claim arising under said trust.” Section 24 gave the trustees power to engage in the business of publishing directories, to enter into the printing, publishing or advertising business of every nature and description, or any other business the trustees may see fit.

The additional count to the declaration then averred that the trustees accepted the obligation of managing trustees under the provisions of said agreement and declaration of trust and under the name and style of McCoy Directory Company embarked upon and thereafter. continued to carry on the business of gathering data for, preparing, publishing and distributing city directories; that prior to 1929, Donnelly and Johnson died and they were succeeded by Wm. H. McCoy and C. A. P.edderson, who accepted the trust and continued with Camlin to carry on the business of the McCoy Directory Company.

The additional count then alleged that on November 24, 1920, Mary M. McCoy, then doing business under the name of McCoy Directory Company, entered into a certain written contract with appellant which is set forth in haec verba under the terms of which appellant agreed to publish for Mary M. McCoy directories for Rockford and 10 other cities; that during the years 1930 and 1931, appellant, at the request of appellees and under the specifications, with noted exceptions, of the 1920 contract, furnished and printed city directories for distribution by appellees for 7 of the 11 cities mentioned in the contract of 1920.

The additional count then avers that appellees did not, in their contract with appellant or in any other contract with appellant, provide, stipulate or require that appellees were not to he personally liable to appellant for said service, work and printing, nor did appellees or any or either of them in said contract or any other contract or agreement, written or parol, provide, stipulate or require appellant to look solely to the trust estate of said common law trust for compensation or payment.

The additional count then avers that the city directories were printed and delivered to appellees according to the contract and were accepted by them; that during 1931 and 1932, $2,958.64 had been paid thereunder by appellees, leaving an agreed balance of $15,176.73 remaining due and concluding that appellees are liable therefor jointly and severally.

Appellant insists that notwithstanding the provisions of paragraph 20, which exempted appellees from personal liability, still they are not so relieved in the absence of an agreement to that effect, that appellees are trustees and as such each trustee is principal and contracted as principal and not as an agent, and is therefore personally liable to appellant. It is further insisted by appellant that there are no averments in the additional count from which it can be concluded that appellant did have notice at the time the contract sued on was made, of the provisions of the declaration of trust exempting appellees from personal liability and even if it did have such notice, the law is that in order to relieve appellees of their personal liability, appellees, as trustees, must have contracted against such personal liability and the amended count expressly avers that appellees did not so contract.

Appellees insist that the averments of the additional count disclose that appellant, at the time the contract was made, when the directories were furnished and delivered and when the parties agreed upon the amount that was due appellant, it, appellant, knew that appellees were a common law trust and appellant is chargeable with knowledge of the terms and conditions of that trust and appellant having extended credit to the trust estate and its clear intention being to look to the trust estate, it cannot hold the appellees personally liable.

As sustaining their respective positions, the Illinois cases of Hunter v. Winter, 268 Ill. App. 487; H. Kramer & Co. v. Cummings, 225 Ill. App. 26, and Uihlein v. Budd, 252 Ill. App. 487, are cited by counsel for both parties and as particularly sustaining its contention, appellant directs our attention to Goldwater v. Oltman, 210 Cal. 408, 292 Pac. 624, 71 A. L. R. 871.

In Goldwater v. Oltman, supra, it appears that some of the causes of action were based on a promissory note executed by the Drascena Productions and the questions presented for decision were whether or not the members or shareholders of Drascena Productions were personally liable upon a note executed by the president of that organization and whether or not the five trustees of the Drascena Productions were personally liable upon the note sued on. The agreement and declaration of trust by which the Drascena Productions came into existence created a type of business organization usually referred to as a Massachusetts or business trust. It contained the usual provisions found in such agreements and provided among other things that five trustees should have full authority and control of the business; that the title to all property should be vested in them and they should fill all vacancies on the board and elect their successors; that the subscribers were not to be personally liable for any of the obligations of the trust and the term of the existence of the organization was fixed upon lives in being so that no question of the rule against perpetuities could be involved. The holders of two-thirds of the issued certificates of trust could terminate the trust without consent of the trustees.

In speaking of an organization of this character, the court stated that they originated because of the hostilities of some States toward corporations and due to the desire of those organizing the same to secure some of the advantages that would be secured by incorporating without incurring the burdens and restrictions therefrom; that due to the statutory provisions in Massachusetts prohibiting corporations from dealing in real property, this type of organization reached its fullest development and most extensive use in that State. “The chief advantages of such organizations,” continues the opinion, “from the standpoint of those desirous of combining their wealth for business purposes are, that until recently they were, in most states, free from regulation, enjoyed freedom from corporation taxation, and its members enjoyed the freedom from personal liability that is imposed upon partners. This type of organization is nothing more than an attempt to use the old common-law trust for the purpose of carrying on business enterprises. Such a trust is brought into,being by a declaration of trust, by the terms of which those desiring to invest their capital agree to the creation of a governing group of trustees, the powers and duties of this board being dependent on the terms of the trust agreement. The interest of each subscriber is evidenced by transferable certificates, similar to shares of stock in a corporation and, in this State, subject to the scrutiny of the corporation department. The organization does not dissolve as does a partnership upon the transfer of any share, nor upon the death, insanity or bankruptcy of a subscriber. The trust agreement usually provides that the trustees and not the subscribers are the owners of the property, and the trustees are given, in a true Massachusetts trust, complete control of the management of the business. In the trust agreement it is always provided that the subscribers are not personally liable for any of the acts of the trustees. . . . Generally stated, a trust of this nature is created wherever several persons transfer the legal title in property to trustees, with complete power of management in such trustees, free from the control of the creators of the trust, and the trustees in their discretion pay over the profits of the enterprise to the creators of the trust or their successors in interest. As thus defined, it is apparent that such a trust is created by the act of the parties and does not depend upon statutory law for its validity.” The opinion then quotes from the case of Hecht v. Malley, 265 U. S. 144, as follows: “The ‘Massachusetts trust’ is a form of business organization, common in that state, consisting essentially of an arrangement whereby property is conveyed to trustees,- in accordance with the terms of an instrument of trust, to be held and managed for the benefit of such persons as may from time to time be the holders of transferable certificates issued by the trustees showing the shares into which the beneficial interest in the property is divided. . . . Under the Massachusetts decisions these trust instruments are held to create either pure trusts or partnerships, according to the way in which the trustees are to conduct the affairs committed to their charge. If they are the principals and are free from the control of the certificate holders in the management of the property, a trust is created; but if the certificate holders are associated together in the control of the property as principals and the trustees are merely their managing agents, a partnership relation between the certificate holders is created.” The court then stated that under the particular agreement and declaration of trust which created the Drascena Productions, the subscribers had no such degree of ultimate control that would make the organization a partnership rather than a trust, and held that no direct personal liability attached to the shareholders of the Drascena Productions simply by virtue of the fact that they were shareholders in that organization. The court then went on to pass upon the liability of the trustees themselves, stating that they had been made defendants because they were likewise shareholders and in holding them liable the court said, 1 ‘ The law is clear, that in the absence of an expressed or implied agreement with the creditors to the contrary, the trustees are personally liable on all contracts with third persons. In the case of Taylor v. Davis, 110 U. S. 330, the rule is thus stated: ‘A trustee is not an agent. An agent represents and acts for his principal. . . . When an agent contracts in the name of his principal, the principal contracts, and is bound, but the agent is not. When a trustee contracts as such, unless he is bound, no one is bound, for he has no principal. The trust estate cannot promise; the contract is therefore the personal undertaking of the trustee. . . . He is personally bound by the contracts he makes as trustee, even when designating himself as such. ... If a trustee contracting for the benefit of the trust wants to protect himself from individual liability on the contract, he must stipulate that he is not to be personally responsible, but that the other party is to look solely to the trust estate.’ (See also, Hewitt v. Phelps, 105 U. S. 393; Betts v. Hackathorn, 159 Ark. 621; Frost v. Thompson, supra; 9 Fletcher on Corporations, sec. 6095: 8 Thompson on Corporations, 3d ed., see. 6746.) This broad personal liability of the trustees may be limited by provisions to that effect in the declaration of trust, if known and agreed to by all the parties affected. (Frost v. Thompson, supra; Wells-Stone Merc. Co. v. Grover, 7 N. D. 460; Taylor v. Davis, supra.) In the trust agreement under consideration, the following provision is found relating to the liability of the trustees: ‘... all contracts . . . shall be the obligation of the trustees, and in every written order, contract or obligation made by the trustees, it shall be their duty to stipulate therein that neither the trustees nor the oestuis que trust shall be held to any personal liability under or by reason of such order, contract or liability, and that all persons having dealings with the trustees shall look only to the property of this trust for payment. ’ In the first place, even if plaintiff knew of this clause in the trust agreement, it does not appear therefrom that in any contract where the trustees' have not stipulated against personal liability, mere knowledge of the above clause would release the trustees from the ordinary and usual personal liability. As we interpret that clause, the creators of the trust have conferred on the trustees the power of releasing themselves from personal liability, but, in order to enjoy that privilege, they must stipulate to that effect in every contract with a third person. That privilege is a limitation of the general rule of liability, and is a limitation on the rights of the creditors of the trust. That being so, the limitation will not be enforced in the absence of a clear understanding and knowledge on the part of the creditors to the effect that no such liability is to exist. In the second place, there is nothing in the record of this case to show that plaintiff’s assignor had knowledge of that clause at the time the promissory note was executed. It was, therefore, error to grant a nonsuit in favor of the five trustees, for, on the record before us, they are clearly liable for the amount set forth in the note.”

Hunter v. Winter, supra, was an action brought against six persons who were associated under a declaration of trust and who conducted their business under the name of Dr. Winter Chemical Company. In holding that the individual trustees were liable for the obligations incurred by the trust, the court said: “Defendants seek to take refuge behind the provisions of the declaration of trust limiting liability, and assert that plaintiff’s claim is either against Dr. Winter personally or against the funds of the trust. We are of the opinion that the rule in this State with reference to such trusts is that while the courts will, so far as possible, give effect to the provisions of the declaration of trust among the members themselves, when they themselves are the only ones interested, and as to third parties who have full knowledge of the character of the trust with which they are dealing, yet where third parties deal with the trust without knowledge of the provisions of the trust agreement, especially those affecting liability, such association must be considered as a partnership.”

H. Kramer & Co. v. Cummings, supra, was an action in which the plaintiff sought to hold the defendants individually liable for goods sold and delivered to the Roman Metals Company. It appeared that the defendants had entered into a declaration of trust and conducted a business under this name. In reversing the judgment of the trial court, which held the defendants individually liable, the court, after referring to the cases of Williams v. City of Waltham, 215 Mass. 1, and Frost v. Thompson, 219 Mass. 360, said: “But we need not discuss the refined distinctions made in those decisions, and others of the State of Massachusetts, where this subject has been particularly discussed, as upon undisputed evidence plaintiff entered into the transaction with full knowledge or notice of the character of the concern with which it was dealing, and must be held bound by the limitations imposed by its articles of association with reference to which the contract must be deemed to have been made. ’ ’

In Uihlein v. Budd, supra, it was sought to hold Budd personally liable for the payment of notes signed “The Vincent Trust, by C. R. Vincent, Pres.” but the court held that the allegations of facts in the declaration would not justify the conclusion that Budd was personally liable, inasmuch as the declaration failed to allege that Vincent in executing the notes was the agent of Budd, nor was it averred that Vincent had authority to execute the notes in the name of his cotrustees. In its opinion that court said: “It is of course true that a trustee who enters into a contract with third persons is himself personally liable unless the agreement expressly provides that the person with whom he contracts shall look to the funds of the estate exclusively. Austin v. Parker, 317 Ill. 348. Unless such limiting language appears in the contract, the word ‘trustee’ is held to be only deseriptio personae, but there is no averment here that the defendant Budd signed any agreement. He cannot be held liable solely by reason of the fact that Vincent executed these notes (if such be the case) in a way that would impose a personal liability upon himself. The declaration fails to aver facts showing an intention to create a personal liability of defendant and he was not liable.”

It is stated by counsel for both sides that the trial court concluded from the allegations of the additional count that appellant had full notice or knowledge of the terms of the trust agreement, particularly paragraph 20 thereof, and that under the foregoing Illinois authorities, appellees were not personally liable under the contract sued on, and that it was not necessary for appellees to stipulate in their contracts with appellant against personal liability. It is true that the additional count sets out in haec verba the trust agreement and the allegations of the additional count disclose that appellant did carry this account in the name of McCoy Directory Company, forwarded itemized statements and invoices to the McCoy Directory Company, that its written proposal to do certain work on November 20, 1920, was addressed to and accepted by McCoy Directory Company, that the written but unsigned memorandum effective January 1, 1931, refers to the McCoy Directory Company and that the completed directories were delivered to the McCoy Directory Company, but from these allegations it does not follow that appellant had knowledge or notice of the terms or conditions of the trust agreement at the time the contract, which forms the basis of this suit, was entered into. Whether appellant knew or did not know of the trust agreement or its provisions does not appear from the allegations of the additional count. What this additional count avers is that the contract sued on was made by appellant with appellees, under the name and style of McCoy Directory Company; that the directories were printed and furnished by appellant to appellees under the name of McCoy Directory Company, and under the provisions of that contract; that itemized invoices were furnished by appellant to appellees under the style of McCoy Directory Company and that thereafter appellees agreed, under the style of McCoy Directory Company, with appellant, that the sum of $18,135.37 was the • true and correct amount due. Appellees, under these allegations, were the McCoy Directory Company, Betts v. Hackathorn, 159 Ark. 621, 252 S. W. 602, 31 A. L. R. 847, and annotation following beginning on page 851, and in order to state a cause of action against them, it was not necessary, in our opinion, for appellant to expressly negative knowledge of the terms of the trust agreement at the time the contract sued on was entered into.

If, however, as counsel for appellees contend, a reasonable interpretation of the averments of the additional count leads to the conclusion that appellant knew he was dealing with a common law trust and was chargeable with knowledge and notice of its terms and conditions, then in addition to that portion of paragraph 20, which provides that every one, having any transactions with appellees, is put on notice that appellees, as well as the beneficiaries, are in no way personally liable for any transaction, appellant was also chargeable with the further proviso therein contained to the effect “that in all contracts and agreements entered into by the trustees for the said trust, specific mention shall be made therein of this trust, to the end that any and all parties must look solely to the trust estate and the trust funds for any claim arising under said trust.” In Goldwater v. Oltman, supra, a somewhat similar clause was interpreted to mean that the creators of the trust conferred on the trustees the power of releasing themselves from personal liability, but-in order to enjoy that privilege the trustees must stipulate to that effect in every contract with a third person. Such a clause granted to appellees a privilege of limiting- their liability, but the express allegations of the additional count are that in the contract sued on, appellees did not avail themselves of this privilege. In 65 C. J. 1104, it is said: ‘1 The trustees of a business trust, having substantial control of the property and business of the trust and who consequently have the status of principals, as in the case of trustees generally, are personally responsible for any obligations growing out of transactions in relation to the business of the trust, unless they have specifically contracted in the incurring of the debt that the trust estate alone shall be held responsible therefor, and this is so, even though the trust instrument expressly declares them exempt from personal liability. . . . Although trustees may stipulate against personal liability on indebtedness incurred in the conduct of the business of the trust, mere knowledge on the part of the creditor that the trustees are acting only as such, or mere knowledge on the part of a creditor of the existence of a provision in the déclaration empowering the trustees so to limit their liability, or of a provision therein which attempts thereby to effect such limitation, is not enough actually to relieve the trustees from such personal liability. . . . The creditor must have a clear understanding in entering into a contract with the trust that he is limiting his right to recover to the property of the trust.”

In Schumann-Heink v. Folsom, 328 Ill. 321,159 N. E. 250, 58 A. L. R. 485, the complainant sought to hold the defendants, trustees under a somewhat similar declaration of trust, individually liable by virtue of a contract entered into between the complainant and the trustees, the declaration of trust reciting that the trustees in their collective capacity shall be designated “Gfoodland Company” and under such name should manage and administer the trust estate. The chancellor entered a money decree against two of the defendants as trustees payable only out of the trust property and dismissed the bill for want of equity as to the defendants in their individual capacity and as copartners. The contract which formed the basis of the litigation expressly provided: “This obligation is executed in behalf of the trustees under the declaration of trust made and delivered at Boston, Massachusetts, and deposited with the Massachusetts Trust Company, not individually but as such trustees, to bind the trust estate.” In affirming the judgment of the Appellate Court which affirmed the decree of the lower court, it was held that the declaration of trust involved in that case was not contrary to the public policy of this State, that, inasmuch as the declaration of trust gave the trustees full control in the management of the business of the trust and the certificate holders not having any control over the business, they were not liable as partners. “This being true,” continues the opinion, “the trustees had no authority to bind the cestu-is que trust, because a trustee is not an agent. "When a trustee contracts, he does so for himself. He has no principal. The contract is the personal undertaking of the trustee, and if he wants to protect himself from individual liability on the contract, he must stipulate that he is not to be personally responsible and that the other party is to look solely to the trust estate. Taylor v. Mayo, 110 U. S. 330; Austin v. Parker, 317 Ill. 348; Bradner Smith & Co. v. Williams, 178 Ill. 420. In the case at bar, the trustees did limit their liability by specifically stating that the contract was executed ‘not individually but as such trustees to bind the trust estate.’ Under the authorities this was sufficient.”

We are of the opinion that the trial court erred in sustaining the demurrer to this additional count and its judgment is reversed, and the cause remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


author: Mr. Presiding Justice Hall

text:
    First District.
    Morris Paper Mills, appellee, v. Walter A. Gatzert and Modie J. Spiegel, appellants.
    Gen. No. 36,658.
    Opinion filed June 20, 1934.
    Samuel A. and Leonard B. Ettelson, for appellants; Edward C. Hag-gins, of counsel. Taylor, Miller, Busch & Boyden, for appellee; Orville J. Taylor, Preston Boyden and Paul C. Hodge, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Morris Paper Mills, appellee, v. Walter A. Gatzert, appellant.
    Gen. No. 36,659.
    Opinion filed June 20, 1934.
    Samuel A. and Leonard B. Ettelson, for appellant; Edward C. Higgins, of counsel. Taylor, Miller, Busch & Boyden, for appellee; Orville J. Taylor, Preston Boyden and Paul C. Hodge, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    James H. McQueeny, trading as McQueeny’s Investigating Agency, appellant, v. Charles S. Deneen, appellee.
    Gen. No. 36,725.
    Opinion filed June 20, 1934.
    Rehearing denied July 9, 1934.
    Lee D. Mathias, for appellant. Roy Massena, for appellee; Marshall A. Pipin, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Lyman B. Mansell, appellant, v. Lord Lumber and Fuel Company, appellee.
    Gen. No. 36,768.

      Opinion filed June 20, 1934.
    Ossian Cameron and Edward H. S. Martin, for appellant. Eckert & Peterson, for appellee; Tom Deeming, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Mike Bialka, appellee, v. Guy A. Richardson, as receiver of Chicago Railways Company et al., appellants.
    Gen. No. 36,777.
    Opinion filed June 20, 1934.
    Rehearing denied July 9, 1934.
    Weber, Miller, Deffenbaugh & Donovan, for appellants; John R. Guilliams, Prank L. Kriete and John E. Kelioe, of counsel. Lester L. Bauer and W. T. Schaeffer, for appellee; Lester L. Bauer and Abraham Miller, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Dorfman & Rosen, Inc., appellee, v. A. Mirsky, appellant.
    Gen. No. 36,817.
    Opinion filed June 20, 1934.
    Rehearing denied July 9, 1934.
    Irwin N. Nason, for appellant; Edward N. Sherburne, of counsel. J. E. Yaffe, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Joseph Mostako, defendant in error, v. J. V. Fincher, trading as Lindex Nash Sales and Earl Call, plaintiffs in error.
    Gen. No. 36,908.
    Opinion filed June 20, 1934.
    Rehearing denied July 9, 1934.
    Cassels, Potter & Bentley, for plaintiffs in error; Ralph P. Potter, Leslie H. Vogel and E. Douglas Seliwantes, of counsel. Alfred Roy Hulbert, for defendant in error.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    G. Victor Sandstrom, defendant in error, v. R. M. Johnson and Frank Cauley, defendants, on appeal of R. M. Johnson, plaintiff in error.
    Gen. No. 36,953.

      Opinion filed June 20, 1934.
    Cummings & Wyman, for plaintiff in error; Austin L. Wyman, of counsel. * Erwin F. Stolle and Charles E. Lewis, for defendant in error.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Hyman Epstein, appellant, v. Continental-Illinois Bank and Trust Company, appellee.
    Gen. No. 36,971.
    Opinion filed June 20, 1934.
    Eiscliel, Kahn, Heart & Epstein, for appellant. White & Hawxhurst, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Lu-Mi-Nus Signs Inc., appellant, v. J. J. Annes, appellee.
    Gen. No. 36,988.
    Opinion filed June 20, 1934.
    Maurice J. Green and Philip Appel, for appellant; Philip Appel, of counsel. Charles J. Monahan, for appellee; Geo. F. Ort, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    In re Estate of Alva C. Austin, deceased. Lester Kulp, appellant, v. Hazel Austin, executrix, appellee.
    Gen. No. 36,943.
    Opinion filed June 20, 1934.
    Isaac B. Lipson, for appellant. Francis M. Lowes and Hector A. Brouillet, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Hattie L. Giles, appellee, v. Mutual Benefit Health and Accident Association, appellant.
    Gen. No. 36,967.
    Opinion filed June 20, 1934.
    Ekern & Meyers, for appellant; Russell H. Matthias and Luther F. Binkley, of counsel. Wendell E. Green, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Raymond J. Dullard, appellee, v. Genevieve Dullard, appellant.
    Gen. No. 37,034.
    Opinion filed June 20, 1934.
    Hume & Kennedy, for appellant. Klenha & Greenfield, for appellee; William E. Anderle, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Ralph E. DeSuno, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 37,043.
    Opinion filed June 20, 1934.
    Hoyne, 0 ’Connor & Rubinkam, for appellant. George F. Engelbreit, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Fannie M. Tisch, appellant, v. Franklin Trust and Savings Bank, appellee.
    Gen. No. 37,058.
    Opinion filed June 20, 1934.
    Markheim & Allie and Edward R. Tiedebohl, for appellant; Harry Markheim and A. R. Miller, of counsel. Sonnensehein, Berkson, Lautmarni, Levinson & Morse, for appellee; Prank Bloom and Isaac E. Eerguson, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Bessie Schlessinger, appellee, v. Bertha Newman and Frank Newman, defendants, on appeal of Sarah Colitz, appellant.
    Gen. No. 37,114.
    Opinion filed June 20, 1934.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel. Leo H. Lowitz, for appellee; Raymond Lowitz, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Edward A. Nelson for use of F. C. Struve, appellee, v. Nelson, Hunt and Company, appellant.
    Gen. No. 37,126.

      Opinion filed June 20, 1934.
    Vernon R. Loueks and A. J. Hennings, for appellant. Frankel & Frankel, for appellee; Sol A. Frankel, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Louis Portman, appellant, v. Frances M. Lenney and Maryland Casualty Company, appellee.
    Gen. No. 37,135.
    Opinion filed June 20, 1934.
    Lavin & Jaffe, for appellant; Ira S. Kolb, of counsel. Wilson & Mcllvaine, for appellee; J. F. Dammann and George Fiedler, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Irma M. Bohdan, appellee, v. Newberry Garage, Inc., appellant.
    Gen. No. 37,144.
    Opinion filed June 20, 1934.
    Jerome B. Read, for appellant; Roy S. Gaskill, of counsel. J. B. Luse, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Illinois Zinc Company, appellee, v. Universal Tool and Die Works, appellant.
    Gen. No. 37,153.
    Opinion filed June 20, 1934.
    Justus Chancellor and Justus Chancellor, Jr., for appellant; E. S. D. Butterfield, of counsel. No appearance for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Philip R. Crippen, appellee, v. City of Chicago et al., appellants.
    Gen. No. 37,164.
    Opinion filed June 20, 1934.
    Rehearing denied July 9, 1934.
    William H. Sexton, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants. R. E. Blackwood, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Wilson

text:
    Eli Metcoff, plaintiff in error, v. Benjamin F. Stein, defendant in error.
    Gen. No. 37,055.
    Opinion filed June 20, 1934.
    Shulman, Shulman & Abrams, for plaintiff in error; Meyer Abrams, of counsel. Moses, Kennedy, Stein & Bachraeh, for defendant in error; Arthur Magid and Adolph Moses, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Jacob Ellegant, plaintiff in error, v. Metropolitan Credit and Discount Corporation, defendant in error.
    Gen. No. 37,188.
    Opinion filed June 20, 1934.
    Rehearing denied July 9, 1934.
    Simon Herr, for plaintiff in error; Douglas O. Gregg, of counsel. Luster & Luster, for defendant in error; Julian J. Luster, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Shade R. Ward, defendant in error, v. George W. Blomgren and Lincoln Trust and Savings Bank, plaintiffs in error.
    Gen. No. 37,201.
    Opinion filed June 20, 1934.
    Schuyler, Weinfeld & Hennessy and Litsinger, Healy, Reid & Bye, for plaintiffs in error; George W. D. Lederer, of counsel. No appearance for defendant in error.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Edwin P. Snow et al., on appeal of Howard S. Bechtolt, appellant, v. Board of Education of City of Chicago et al., appellees.
    Gen. No. 37,236.
    Opinion filed June 20, 1934.
    Rehearing denied July 9, 1934.
    Allan J. Carter, I. T. Greenacre and Wiley W. Mills, for appellant; Ferris E. Hurd and Thomas Mason, of counsel. Richard S. Folsom, for appellees; Frank S. Righeimer, Ralph W. Condee and Frank R. Schneberger, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Thomas P. Harris, administrator of the estate of Charles W. Street, deceased, plaintiff in error, v. New York Central Railroad Company, defendant in error.
    Gen. No. 37,255.
    Opinion filed June 20, 1934.
    Morris & Cashin, for plaintiff in error. Sidney C. Murray, Marvin A. Jersild and Harold E. Christensen, for defendant in error.
   Mr. Justice Wilson

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    Angelina Baldassare, formerly Angelina Annina, appellee, v. Federal Union Life Insurance Company of Cincinnati, appellant.
    Gen. No. 36,826.
    Opinion filed July 2, 1934.
    Rehearing denied July 16, 1934.
    Clyde L. Todd, for appellant; Lee D. Mathias, of counsel. Livingston & Kaufman, for appellee; William McKinley and Paul E. Price, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois, etc., et al., appellees, v. The Kaspar-American State Bank, appellant.
    Gen. No. 37,447.
    Opinion filed July 2, 1934.
    Ring, Uhlir & Cuchna, for appellant. Harold J. Finder, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Giles McClendon, appellee, v. Myrtle Wall et al., appellants.
    Gen. No. 37,506.
    Opinion filed July 2, 1934.
    W. C. Smith, for appellants. Adams & Baker, for appellee; Samuel Grossman, guardian ad litem. Weldon Webster, attorney for guardian ad litem; Geo. C. Adams, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    Steve Procopcuk, appellee, v. The Prudential Insurance Company of America, appellant.
    Gen. No. 37,061.

      Opinion filed July 2, 1934.
    Hoyne, O’Connor & Rubinkam, for appellant. H. Kay George and Martin Rothman, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Eugene R. Sullivan, appellee, v. Andrew Schmitz, appellant.
    Gen. No. 37,147.
    Opinion filed July 2, 1934.
    Frank A. McDonnell and S. B. McDonnell, Jr., for appellant. Daniel L. Madden, for appellee; Edward J. Kelley, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Jacob Goldberg, plaintiff in error, v. Wesley G. Bender, defendant in error.
    Gen. No. 37,357.
    Opinion filed July 2, 1934.
    Maxwell N. Andalman, for plaintiff in error. John P. Loughnane, John O’C. FitzGerald and Joseph H. Farley, for defendant in error; George F. Ort, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Robert Eisenberg, defendant in error, v. George R. Blumenstock, plaintiff in error.
    Gen. No. 37,428.
    Opinion filed July 2, 1934.
    Wilhartz, Hirseh & Schanfarber, .for plaintiff in error; Julian H. Levi and Eugene H. Nirdlinger, of counsel. Charles M. Haft, for defendant in error.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Sera Chrome Plating Company, appellee, v. J. A. Dubow Manufacturing Company, appellant.
    Gen. No. 37,458.
    Opinion filed July 2, 1934.
    Carpenter, Neltnor & Seolnik, for appellant; Avern B. Scolnik, of counsel. Frederick A. Smith, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    Chicago City Bank and Trust Company, conservator of the estate of Rose Bush, insane, appellee, v. William Kaufman and Sophia Kaufman, appellants.
    Gen. No. 36,520.
    Opinion filed July 2, 1934.
    Sabath, Perlman, Goodman & Rein, for appellants. Wells & Lid-dell, for appellee; Lauritz P. Hwass and Henry L. Wells, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Frank E. Scholl, appellee, v. G. A. Ackermann Printing Company, Inc., appellant.
    Gen. No. 37,046.
    Opinion filed July 2, 1934.
    Mayer, Meyer, Austrian & Platt and Frank W. Sullivan, for appellant; Henry Heineman, of counsel. Walter E. Moss, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Joseph LaRosa, appellee, v. National Fire Insurance Company of Hartford, Connecticut, appellant.
    Gen. No. 37,102.
    Opinion filed July 2, 1934.
    Hicks & Folonie, for appellant. Abner Goldenson, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Joseph Lukis, appellee, v. Bruno R. Drake and Cicero State Bank, defendants. James L. Corcoran, intervener, on appeal of Bruno R. Drake and James L. Corcoran, appellants.
    Gen. No. 37,372.
    Opinion filed July 2, 1934.
    Frederick A. Gariepy and Owen Rail, for appellants. T. Fred Laramie, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Lillian Radtke, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 37,455.

      Opinion filed July 2, 1934.
    Hoyne, O’Connor & Rubinkam, for appellant. Estelle M. Wells, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Chicago Laundry Owners Association et al., appellees, v. American Wet Wash Laundry, Inc., et al., appellants.
    Gen. No. 37,568.
    Matehett, J., dissenting.
    Opinion filed July 6, 1934.
    Elmer W. Arch, for appellants; Elmer W. Arch and Charles H. Borden, of counsel. Jacobson, Merrick, Nierman & Silbert, for appellees; Lewis F. Jacobson, Sidney C. Nierman, David Silbert and Arthur Altschul, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Ralph H. Jackson, trading as Ralph H. Jackson and Company, defendant in error, v. G. Clyde Ferson, plaintiff in error.
    Gen. No. 37,031.
    Opinion filed July 6, 1934.
    Rehearing denied October 2, 1934.
    Bippus, Rose & Burt, for plaintiff in error; Robert C. Pierce, of counsel. Edelson & Paullin, for defendant in error; Hyland J. Paullin and J. Henry Aronson, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Frederick A. Wilson, defendant in error, v. Henry B. Kilgour, plaintiff in error.
    Gen. No. 37,297.
    Opinion filed July 6, 1934.
    Cheney, Evans & Peterson, for plaintiff in error; Albert Peterson, of counsel. Harry H. Felgar, for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    1934 Streets of Paris, Inc., appellee, v. Charles H. Weber et al., appellants. Paris, Inc. et al., appellees.
    Gen. No. 37,608.

      Opinion filed July 6, 1934.
    Rosenberg, Toomin & Stein, for appellants. George I. Haight, for appellee 1934 Streets of Paris, Inc.; M. K. Hobbs and Ward Ross, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Wolfe

text:
    Second District.
    Charles W. Hadley et al., trading as Hadley & Weaver, defendants in error, v. Frank Z. Hanscom, plaintiff in error.
    Gen. No. 8,746.
    Opinion filed June 28, 1934.
    F. Z. Hanscom, pro se. John S. Woodward, for defendants in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    Marguerite Jamieson, appellee, v. Charles W. Jamieson, appellant.
    Gen. No. 8,753.
    Opinion filed June 28, 1934.
    Walter P. Altenburg and Robert G. Phelps, for appellant. George S. MeGaughey, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Cletus Rielly, a minor, by Martha Rielly, his mother and next friend, appellee, v. Fannie Hamilton, appellant.
    Gen. No. 8,800.
    Opinion filed June 28, 1934.
    Smith & Menzimer, for appellant; Frank E. Maynard, of counsel. Knight & Lupton, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Alexander Lumber Company, appellant, v. John C. Coberg et al., appellees, and Hammerschmidt and Franzen Company, intervening petitioner, appellant.
    Gen. No. 8,554.
    Opinion filed July 12, 1934.
    Rehearing denied August 23, 1934.
    Hadley, Weaver & Woodward, for appellant Alexander Lumber Co. Michael Kross, for appellant Hammerschmidt & Franzen Co.; Charles W. Hadley, Michael Kress, Palmer Leren and William O. Atten, of counsel. Ohurch, Haft, Robertson, Crowe & Spence, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.