text:
    People of the State of Illinois, Defendant in Error, v. John Taylor Wilson, Plaintiff in Error.
    Gen. No. 41,076.
    Opinion filed June 26, 1940.
    Rehearing denied July 9, 1940.
    Myer H. Gladstone and Russell Baker, both of Chicago, for plaintiff in error.

      Thomas J. Courtney, State’s Attorney, for defendant in error; John J. Phillips and Nathan Kinnally, Assistant State’s Attorneys, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

By this writ of error defendant, John Taylor Wilson, seeks to reverse a judgment of the county court, which found him guilty of violating the Illinois Securities Act and fined him $1,000. The cause was heard by the court without a jury. He was tried upon the second count of the amended information, which charged:

“ ... that John Taylor Wilson, being then and there an officer and agent of the Chicago Gulf Corporation, a Delaware corporation, the issuer of the securities hereinafter described, did, on, to-wit, the 16th day of September, 1937, at and within the County and State aforesaid, unlawfully sell to J. Harold Lahman forty-one (41) certificates numbered C. O.1135 to C. 0.1140, both inclusive, C. O. 1204 to C. O. 1207, both inclusive, C. O. 1226, C. O. 1227, C. O. 1233 to C. O. 1239, both inclusive, C. O. 1241, C. O. 1412 to C. O. 1431, both inclusive, and C. O. 3386, said certificates being for thirty-nine hundred (3900) shares of Chicago Gulf Corporation, a Delaware corporation; that the said certificates then and there sold were securities as defined in and by the Illinois Securities Act, approved and in force June 10, 1919, as amended, which securities were then and there unregistered in the office of the Secretary of State of the State of Illinois, in that the necessary statements and documents as required by the provisions of said Illinois Securities Act, as amended, for the purpose of qualifying said securities, had not, prior to said sale, been filed by, for, on or behalf of the issuer of said securities in the office of the said Secretary of State of the State of Illinois, and which sale was not then and there a transaction qualified as exempt under the provisions of Section 5 of said Act, and which securities were not then and there exempt in and by Section 4 of said Act.”

Defendant was president of the Chicago Gulf Corporation, which was the issuer of the securities involved. The directors of said corporation held a special meeting on December 2, 1936, to discuss and consider its financial problems. It was reported at this meeting that the corporation was in financial difficulties. Its accrued liabilities amounted to $44,387.33 as against its current assets of $5,000 on August 31, 1936, and it required $56,286.11 in cash to meet its payable, fixed and estimated charges for the balance of the year 1936. The following is a portion of the minutes of said meeting.

‘ ‘ The President reported that it is estimated that this corporation will require not less than the sum of $100,-000.00 in cash during the balance of the present calendar year, or shortly thereafter, in order to pay existing liabilities and liabilities which will probably accrue in connection with the Steinberger contract.

“The President further reported that he would purchase for his own account 100,000 shares of the common capital stock of this corporation at $1.00 per share and give to this corporation his collateral promissory note for the sum of $100,000.00, due and payable on or before one year from the date thereof, bearing interest from date at the rate of five (5) per cent per annum until paid, and secured by the deposit of said 100,000 shares of common capital stock of this corporation, with the understanding, however, that he should be permitted to take down on his trust receipt convenient blocks of the shares of the common capital stock of this corporation deposited as collateral security, as aforesaid.

“The President stated that he had either secured for or supplied from his own funds all the money (other than income from the leaseholds) needed and required by this corporation for corporate and other purposes, but that if any member of the Board could suggest a better means for securing said $100,000.00, or any part thereof, and could secure the same for this corporation, then and in such case he would welcome such assistance.

“No member of the Board suggested either the ways and means of raising said $100,000.00, or any part thereof, on a better basis than proposed by the President, or offered any assistance in that connection.” Pursuant to defendant’s proposal the directors adopted the following resolution:

“Now, Therefore, Be It Resolved by this Board in meeting duly assembled, that the proposal of said John Taylor Wilson for the purchase of 100,000 shares of the common capital stock of this corporation at $1.00 per share (said Wilson giving his collateral promissory note for the principal sum of $100,000.00, payable to this corporation on or before one year after the date thereof, with interest at five (5) per cent per annum from the date thereof until paid, secured by said 100,-000 shares of common capital stock of this corporation as collateral security thereto) be and the same is hereby approved, provided however,' that said John Taylor Wilson shall have the right and privilege to take down, from time to time, on his trust receipt convenient blocks thereof, and provided further that said John Taylor Wilson shall not sell, exchange or offer for sale said 100.000 shares of the common capital stock of this corporation, all or any part thereof, to any person whomsoever, save and except persons, partnerships, association of persons and corporations exempted under the Illinois Securities Law, unless and until said 100.000 shares of the common capital stock of this corporation is qualified for sale under the Illinois Securities Law; and be it

“Further Resolved that said collateral promissory note and the 100,000 shares of the common capital stock of this corporation deposited as collateral thereto, be lodged with the Vice-President of this corporation, as custodian; the Vice-President being authorized to receive for and on behalf of this corporation all moneys paid thereon for the account of this corporation, and to deliver to said John Taylor Wilson on his trust receipt convenient blocks of said 100,000 shares of the common capital stock of this corporation from time to time as in his better judgment he deems advisable.”

Shortly after this meeting 99,795 shares of the corporation common stock were issued in defendant’s name and delivered to the vice president of the corporation as custodian thereof in accordance with the terms of the foregoing resolution. Defendant withdrew on his trust receipt 19,000 shares of this stock on October 23, 1926, and 28,500 shares on November 6, 1936, or a total of 47,500 shares. The record discloses that 17,470 of these shares of stock had been sold to third persons and transferred on the books of the corporation. 3,900 of the aforesaid 99,795 shares of stock were sold by defendant to the complaining witness, J. Harold Lahman, for cash and certain.oil royalty deeds on September 16, 1937. It appears that on October 13, 1937, the defendant with the approval of the board of directors of the Chicago Gulf Corporation canceled his aforesaid $100,-000 note as indicated by the following indorsements thereon:

“October 6, 1937 Credited............ 17,409.71

October 12, 1937 Credited............ 202.15

October 14, 1937 Credited by transfer of 57,395 shs. of Collateral at $1.00 per sh.... 57,395.00

October 14, 1937 Balance paid by new note due Sep. 2,1938. 24,993.14

100,000.00”

The bill of sale of September 16, 1937, covering the sale of stock by defendant to Lahman contained the recital “Four Thousand . .'. shares Chicago Gulf Corporation Common Capital stock from the personal holdings of John Taylor Wilson.” The $5,000 note which Lahman gave defendant in part payment of the stock contained the recital, ‘ ‘ This note secured by 4',000 shares Chicago Gulf Corporation common stock.” Shortly thereafter Lahman paid the $5,000 note and defendant delivered 3,900 shares of the stock to him.

It was not only conclusively shown by the evidence but it is conceded that the stock sold by the defendant to Lahman was not qualified for sale under the Illinois Securities Law and it is also conceded that the said stock was not exempt from qualification as class “A” securities under section 4 of such act (ch. 121½, par. 99, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 13.04]).

The sole question presented is whether the State proved by competent evidence beyond a reasonable doubt that the sale of the stock to Lahman by defendant was not exempt under section 5 (1) of the Securities Act. In other words did the amended information properly charge and the evidence show beyond a reasonable doubt that the defendant sold the stock in question as an officer or agent of the issuer for the corporation’s benefit and that defendant did not sell the stock as the bona fide owner thereof for his own benefit?

Section 5 (1) of the Illinois Securities Law (ch. 121½, par. 100, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 13.05]) provides as follows:

“Securities in Class ‘B’, being exempted sales, shall include:

“ (1) The sale in good faith and with no intent to defraud of any security by or on behalf of a vendor who is not an issuer, or underwriter thereof, or a dealer or broker, and who, being a bona fide owner of such security, disposes of his own property for his own account and such sale is not made directly or indirectly, for the benefit of the issuer or an underwriter of such security, or for the direct or indirect promotion of any scheme or enterprise with the intent of violating or evading any provisions of this Act.” (Italics ours.)

It will be noted that in order for a transaction for the sale of unqualified stock to be exempt under this section of the act, the sale must be made in good faith by or on behalf of the vendor, who, being a bona fide owner of the securities sold, disposes of his own property for his own account. This section affords no protection or exemption from prosecution for the sale of unqualified securities if the sale is made directly or indirectly for the benefit of the corporation which issued the stock or if the sale is made “for the direct or indirect promotion of any scheme or enterprise with the intent of violating or evading any provision of this Act.” That the sale was made by the defendant as part of a scheme to deliberately and intentionally violate the provisions of the Securities Act was clearly and conclusively proved by the evidence.

As heretofore shown, the corporation, of which defendant was president, was in such desperate straits that it was necessary to call a special meeting of its board of directors on September 2,1936, to consider its financial affairs. The corporation needed $100,000 to carry it through the year 1936. It was confronted with the necessity of securing that amount of money. How was it going to get it? The corporation, itself, could not sell the stock because it was? not and could not be qualified for sale. The defendant then advanced his .proposal, heretofore set forth, which it must be borne in mind was for the purpose of securing funds for the corporation. No other member of the board of directors having offered any other or better plan “for raising the $100,000” needed by the corporation, defendant’s proposal was approved and 99,795 shares of stock were issued in his name and delivered to the vice president of the corporation as custodian, who was authorized to receive ‘ ‘ all moneys paid thereon for the account of this corporation” and “to deliver to John Taylor Wilson on his trust receipt convenient blocks of said 100,000 shares ’ ’ from time to time as he requested them. Wilson withdrew 47,500 shares of this stock and sold 3,900 shares of same to Lahman.

The defendant’s purchase of this stock from the corporation was only pretended and that he never was the bona fide owner of same is clearly demonstrated by the manner in which he was permitted to cancel his $100,-000 note on October 13, 1937. In canceling said note, defendant credited himself with $17,611.86, which he had turned over in cash to the corporate treasurer in payment of 17,470 shares of this stock sold by him and with 57,395 shares of the stock at $1 per share, which he returned to the corporation. He paid the balance of the $100,000 note with a new note for $24,933.14 to cover shares of the stock which had heretofore been withdrawn by him but which he had neither sold nor returned up to the date of said cancellation. The fact that the corporation permitted defendant to return 57,395 of the 100,000 shares of stock supposedly purchased by him and to give a new note for the 25,025 shares still retained by him clearly indicates that his alleged purchase of the stock was a sham and a subterfuge and part of a scheme to foist this unqualified stock on the public in violation of the provisions of the Securities Act.

The recital in the bill of sale to Lahman that the stock sold to him was “from the personal holdings of John Taylor Wilson” and the statement contained in the resolution adopted by the board of directors of the corporation at its meeting on September 2,1936, “that said John Taylor Wilson shall not sell, exchange or offer for sale said 100,000 shares of the common capital stock of this corporation, all or any part thereof, to any person whomsoever, save and except persons, partnerships, association of persons and corporations exempted under the Illinois Securities Law, unless and until said 100,000 shares of the common capital stock of this corporation is qualified for sale under the Illinois Securities Law” did not render the scheme any the less illegal and criminal. The recital in the one instance and the statement in the other were, in our opinion, merely disguises to mask a deliberate intention to violate the provisions of the Securities Act.

The judgment of the county court should be and it is affirmed.

Judgment affirmed.

Friend, P.J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Rose Antinori et al., Defendants. Charles Ross, Appellant.
    Gen. No. 41,019.
    Opinion filed July 2, 1940.
    Maurice L. Zaretsky, of Chicago, for appellant.
    Thomas J. Courtney, State’s Attorney, for appellee; Marshall V. Kearney, Jacob Shamberg, John T. Fitzgerald, Louis A. Pinderski and Brendan Q. O’Brien, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Charles Boss, appealing, questions the ruling of the trial court which refused him leave to file his petition in which he attacked the action of the county treasurer in refusing to accept his bids at a tax foreclosure sale.

The foreclosure proceedings were pursuant to § § 238-252 of the Revenue Act of Illinois as amended, ch. 120, pars. 719-733, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 119.735-119.749], and the decree of foreclosure and sale was entered June 29, 1939. Ross was not a party to these proceedings.

The petition alleged that the sale was conducted by the county treasurer through his representative, Edward Bicek; that the petitioner through his counsel attended the sale and made the highest and best bids for the following parcels of real estate: Parcel No. 2, $3,150; parcel 12, $1,350; parcel 14, $6,250. The petition alleges that these parcels were sold to petitioner, who offered Bicek cashier’s checks as follows: $350 for parcel 2, $150 for parcel 12, and $750 for parcel 14; that Bicek refused to accept these unless the full amounts of petitioner’s bids were paid then and there.

In People v. Cant, 260 Ill. 497, 500, the court held that the usual practice in the foreclosing of tax liens under the Revenue Act was to decree a sale for cash to the highest bidder. The decree of foreclosure in the instant case ordered the county treasurer to sell the parcels of real estate at public auction for cash. The publication of the notice of sale stated that the sale should be for cash and chapter 120 (Illinois Revenue Act) § 247 [Jones Ill. Stats. Ann. 119.744] provides that sales in foreclosures for delinquent taxes shall be for cash. The petitioner contends that he was entitled to withhold the balance of his bids until after the confirmation of the sale by the court. This would be unreasonable. A “cash” sale means payment in full at the time, in currency or its equivalent. The county treasurer could not under the terms of the decree accept a bid with partial payment on account and a promise to pay the balance at some future time. The decree contemplates that the sale shall be, in fact, accomplished before the county treasurer submits Ms report of sale to the court.

The petition filed did not present any issue to be tried by the court and the refusal to permit it to be filed was proper and the order is affirmed.

Order affirmed.

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


text:
    A. J. Canfield Co., Appellant, v. Russell J. McGee, Appellee.
    Gen. No. 41,028.
    Opinion filed July 2, 1940.
    Rehearing denied and supplemental opinion filed July 15, 1940.

      William T. Pridmore, of Chicago, for appellant; Marion G. McClelland, of Chicago, of counsel.
    No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff is engaged in manufacturing and selling beverages and defendant was one of its employees; a written contract of employment was executed by them in which defendant agreed not to accept employment from any other corporation or engage in any competitive efforts without the permission of plaintiff; the complaint alleged a breach of this agreement by defendant and sought to enjoin him from engaging in a competing beverage business in certain territories in the city of Chicago and also for damages.

The contract provided that in case of a breach by defendant $100 a day as liquidated damages should become due from defendant to plaintiff and plaintiff sought to enforce this covenant; answer was filed and the cause was referred to a master in chancery who recommended the injunction prayed for but refused to enforce the amount stated as liquidated damages, holding that this was intended as a penalty rather than liquidated damages and that the amount of the penalty was excessive and unconscionable and should not be enforced. The trial court overruled exceptions to the report, approved it and decreed accordingly. Plaintiff appeals to this court, saying that the sole question raised on this appeal is the part of the decree touching the $100 named in the contract. Plaintiff argues that this was for liquidated damages and as such enforcible. Defendant does not appear in this court.

Plaintiff cites Canfield Co. v. Gleasner (opinion by the 2nd Division of this court), 296 Ill. App. 637 (Abst.). That case involved a contract similar to the one now before us. There the trial court had dismissed plaintiff’s complaint. This court held that this was error and reversed the judgment and remanded the cause with directions to grant a temporary injunction and to require the • defendant to answer. The question of the damages was not touched upon in that opinion.

Plaintiff cites a large number of eases sustaining a provision for liquidated damages in the contracts involved. Such provisions have been sustained in many cases but there are an equal number of cases holding that the words “liquidated damages” are not conclusive, for the reason, as stated in an article by Mr. Prentice in 31 Ill. Law Rev. 879, 880, 881, quoting from Professor Corbin in 40 Tale L. J., that “calling an outrageous penalty by the more kindly name of liquidated damages does not absolve it from its sin.” This is in accord with what is said in Hennessy v. Metzger, 152 Ill. 505,514, where the court said the fact that the parties used the words “liquidated damages” in their agreement does not always determine the question, citing Scofield v. Tompkins, 95 Ill. 190, and Sedgwick on Damages, 6 ed. — marg. p. 399. The opinion says in order to determine whether a stipulated sum is a penalty or liquidated damages the court will consider the language used, the subject matter of the contract and the intention of the parties. This was repeated in substance in Iroquois Furnace Co. v. Wilkin Mfg. Co., 181 Ill. 582, 601. In 19 Am. & Eng. Enc. of Law, 397, it is stated that in determining the question the courts must view the whole contract and circumstances surrounding its execution and that courts incline to that construction in which the sum stated is held to be a penalty, citing a large number of cases.

We apply these considerations to the instant case. The master found that for about three months prior to the execution of the contract, September 4, 1937, defendant was employed by plaintiff as a salesman; that defendant and other salesmen were assembled in a meeting at the general offices of plaintiff and notified that all the salesmen would be required to sign the printed agreement submitted to them, and that unless they did so, any salesman so declining would be discharged. Defendant thereupon signed the agreement.

It was covenanted in the written agreement that defendant should be paid weekly, according to a commission list ‘ ‘ herewith furnished. ’ ’ The master found that neither at the time of the execution of the written agreement nor subsequent thereto was any written list of commissions to be paid furnished to defendant; that prior to the execution of the contract defendant was paid as his compensation for services a weekly salary, together with commissions on sales but that the payment of the weekly salary to defendant was discontinued and his compensation based wholly on commissions. During the taking of evidence there was a statement made by defendant’s counsel, which was not contradicted, that defendant ‘ ‘ did not make $100 in two weeks; he didn’t earn it.” Objection was made that evidence of this would not be relevant. Evidence of defendant’s earnings was proper as touching the reasonableness, or otherwise, of the penalty.

Under these circumstances, especially where defendant was compelled under threat of discharge to sign the agreement, we are of the opinion the trial court properly held that the provision for $100 a day was a penalty instead of liquidated damages, and that the amount of the penalty under the circumstances of the case was excessive and unconscionable and should not be enforced in this proceeding, and the decree will be affirmed.

Decree affirmed.

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

Supplemental Opinion.

Plaintiff has filed a petition for rehearing in which it complains that we have given no reasons for holding that the trial court properly held the provision in the contract for $100 a day was a penalty instead of liquidated damages, and that the amount of said penalty, under the circumstances, is excessive and unconscionable and should not be enforced in this proceeding. Two reasons might be suggested: (1) The conclusions of the master and the chancellor, when they are in accord, will not be disturbed unless manifestly against the weight of the evidence. Pasedach v. Auw, 364 Ill. 491; (2) Defendant’s compensation was $25 a week, plus commissions of approximately 4 to 5 per cent, subsequently changed to commissions only, around 8 per cent. Under such circumstances it requires no argument to convince that a penalty of $100 a day was unreasonable and unconscionable. The petition for rehearing is denied.


author: Mr. Justice Culbertson

text:
    J. J. O ’Haran, Appellee, v. Leonard Leiner, Appellant.

      Opinion filed June 14, 1940.
    Beasley & Zulley, of East St. Louis, for appellant.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of St. Clair county, Illinois, in the sum of $200, entered in favor of J. J. O’Haran, appellee (hereinafter called plaintiff), and against Leonard Leiner, appellant (hereinafter called defendant).

The action was originally instituted in the court of a justice of the peace, against defendant and his wife, and in such court a judgment had been entered against both defendant and his wife for the sum of $250. Defendant alone appealed to the circuit court from such judgment entered in the justice of the peace court.

In the circuit court a jury was waived and the matter was tried by the court and judgment for $200 was therein entered against defendant. The action of the plaintiff was instituted to recover damages in the amount of the reasonable cost of repairs to plaintiff’s automobile for damage caused to such automobile as a result of a collision with the automobile of defendant, which at the time of the accident, was being driven at an intersection in East St. Louis, Illinois by defendant’s wife. The evidence disclosed that at the time of the accident, and for a long time prior thereto, the defendant, his wife, and their six-year-old daughter, resided together in East St. Louis, Illinois. Defendant’s wife was not employed in any capacity, but received her only income from her husband, which income was to be used by her for household and family expenses, including clothing and other expenses of defendant’s child. During the afternoon on which the accident occurred, while defendant was away at his work, defendant’s wife was in the process of taking their daughter in the automobile of defendant to a downtown store for the express purpose of buying a "25c” Halloween party dress for the six-year-old girl. While the defendant’s wife was en route to the store the accident occurred. Motions to find for and enter judgment in favor of defendant were filed at the close of the plaintiff’s case and at the conclusion of all the evidence in the case, but both motions were denied. Error is assigned on the denial of such motions, and generally to the effect that the court erred in entering judgment against the defendant in this cause.

The only contention made by the defendant, in substance, on appeal in this cause is, that the defendant was not liable for the tort of the wife under the facts in this case. It is pointed out that in the determination of the case in the circuit court below, the plaintiff took the position that the defendant was liable to plaintiff for the tort of the wife of defendant on the theory that she was, at the time of the accident, on a family errand, and thus was acting as agent of the defendant, her husband. Defendant contends that the evidence does not justify such conclusion, and that this case is not controlled by the decision of Graham v. Page, 300 Ill. 40.

While it is clear that, under the law of this State, the so-called “family purpose doctrine” is not in force (White v. Seitz, 342 Ill. 266; Andersen v. Byrnes, 344 Ill. 240), and while it is likewise true that a husband is not ordinarily liable for his wife’s torts, except in cases where he would be jointly responsible with her if the marriage relationship did not exist (Ill. Rev. Stat., 1939, ch. 68, par. 4 [Jones Ill. Stats. Ann. 64.04]) still, if the wife was, at the time of the commission of the tort, acting in the capacity of agent of the husband, the husband may be held responsible for the wife’s tort, under such circumstances (Graham v. Page, supra; White v. Seitz, supra; Andersen v. Byrnes, supra).

It is contended by the defendant that the fact that the husband knew nothing about the proposed purchase of the Halloween party dress, and the fact that such party dress was not a “necessity,” distinguishes this case, on the facts, from Graham v. Page (supra), and under such set of facts, that a judgment could not be sustained in the instant case. This result is contended for pursuant to the doctrine of Mosby v. Kimball, 345 Ill. 420, 427 (approved in this court in Jones v. Standerfer, 296 Ill. App. 145, 150), to the effect that the relationship of master and servant, or principal and agent, must be shown to have existed at the time and with respect to the particular transaction out of which the injury arose, between the person at fault and the one sought to be charged for the result of the wrong.

We cannot agree with the conclusion of defendant in this connection. As was pointed out by the Supreme Court in Andersen v. Byrnes, supra, at p. 244, “ . . . Graham v. Page, supra ... was different in the circumstance that the driver of the car, the defendant’s 16-year-old daughter was driving it on what was regarded by the Court as a family errand. . . . The liability was distinctly held not to rest on the relation of parent and child, but on that of master and servant, or principal and agent.” It is thus clear that the Supreme Court in the Andersen case, in interpreting the case of Graham v. Page, indicated that the rule established in the Supreme Court was one which was predicated on the fact that agency may be established by a showing that the member of the family engaged in driving the automobile was on a “family errand.” In the Graham case the fact that the daughter was driving on a family errand, as contrasted with merely driving for her own pleasure, was deemed sufficient to establish the relationship of master and servant because of the fact that it was the business or duty of the father to provide for repairing of the daughter’s shoes, and that she was deemed to be the agent of her father in the performance of that duty or business with the means (the automobile) authorized by him (Graham v. Page, supra, at p. 43). There is nothing in such case or in any of the cases which this court has been able to discover, which limits the doctrine to family errands connected with the purchase of “necessities.”

We appreciate that liability of a husband for a wife’s tort must be strictly limited on a basis of the relationship of principal and agent, or master and servant, and does not arise by virtue of the relationship of husband and wife. Where family expenses, or family errands for the purpose of making family expenditures, are undertaken by a wife, with the means provided by the husband, as was true in the instant case, we feel, however, that the agency of the wife in connection with the making of such expenditures, or in engaging upon family errands for which" a responsibility might otherwise have been imposed upon a husband, is established when it is shown that the wife was in fact on a family errand of such character.

A husband is chargeable with family expenses (Ill. Rev. Stat. 1939, ch. 68, par. 15 [Jones Ill. Stats. Ann. 64.15]), and such “family expenses” and “necessities” are not necessarily synonymous (Mandel Bros. v. Ringstrom, 189 Ill. App. 564). What is a family expense, or a family errand, is a question of fact (Vercler v. Jansen, 96 Ill. App. 328), which may be determined by the court in absence of a jury.

We are aware of the fact that the doctrine of implied agency, which was the foundation of Graham v. Page, supra, should not be extended beyond the limitations of acts in the furtherance of family errands for the purpose of making family expenditures, or otherwise in pursuance of what may logically be construed as the “business” or “duty” of the husband or father. To permit a recovery where the family member was engaged in an errand to procure repairs to her shoes (as was true in Graham v. Page), and to deny liability where the errand entailed the purchase of a cheap party dress for the child of a defendant (as was true in the instant case) would, in the opinion of this court, not be a sound or reasonable basis of distinction. We do not feel that the doctrine of implied agency, which has been consistently stated to be the foundation of liability in cases of this character, should, or was intended to, be restricted to family errands involving purchases of necessities alone. We, accordingly, conclude that the court below did not err in denying defendant’s motions, or in entering judgment in favor of plaintiff.

The judgment of the circuit court of St. Clair county is, therefore, affirmed.

Affirmed.


author: Mr. Justice Dady

text:
    G. R. Stallings, Appellee, v. Fidelity-Phenix Fire Insurance Company of New York, Appellant.

      Opinion filed June 14, 1940.
    Charles T. Flota, of Harrisburg, for appellant.
    Endicott & Endicott, of Carmi, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

Plaintiff, G. R. Stallings, on February 14,1938, purchased a used Ford automobile from the Keck Motor Company of Mt. Vernon, Indiana. He turned in another automobile as part-payment, and to evidence the balance of the purchase price gave the seller two notes aggregating $500, signed by himself and his wife. Each note recited that it was given for the purchase money of the Ford car, and that it was agreed and understood between the payee (Keck Motor Company) and the makers of the notes that title did not pass from the payee to the makers until the principal and interest were paid in full. These notes have not been paid.

On the same day plaintiff applied to the State of Illinois for a certificate of title covering the car. His written application stated “This vehicle is subject to the following lien: Amount $500.00 Kind of Lien Conditional Sale In favor of Keck Motor Co. Mt. Vernon, Indiana.” Thereafter, a certificate of title covering the car was issued to the plaintiff reciting the existence of the conditional sale lien as set forth in his application.

On February 16,1938, plaintiff took out an insurance policy from the defendant, Fidelity-Phenix Fire Insurance Company of New York, on the car for a period of one year to cover fire loss. The policy provided:

“D. Warranty by Assured.

“6. The automobile described is fully paid for by the Assured and there is no Lien, Mortgage or other Encumbrance thereon, except as follows: No Exceptions.

“E. This policy is made and accepted subject to the provisions, exclusions, conditions and warranties set forth herein or endorsed hereon, and upon acceptance of this policy the Assured agrees that its terms embody all agreements then existing between himself and this Company or any of its agents relating to the insurance described herein,---- This policy shall be void in event of violation by the Assured of any agreement, condition or warranty contained herein or in any rider now or hereafter attached hereto.

General Conditions.

“Lien or Encumbrance.

“Unless otherwise provided by agreement in writing added hereto, and except as to any lien, mortgage, or other encumbrance specifically set forth and described in Paragraph D of this policy, this Company shall not be liable for loss or damage to any property insured hereunder while subject to any lien, mortgage or other encumbrance.

“Title and Ownership.

“Except as to any lien, mortgage, or other encumbrance specifically set forth and described in Paragraph D of this policy, this entire policy shall be void, unless otherwise provided by agreement in writing-added hereto, if the interest of the Assured in the subject of this insurance be or become other than unconditional and sole lawful ownership, ...”

On August 2, 1938, the automobile was destroyed by fire. Plaintiff duly notified defendant of the loss. On September 14, 1938, the Keck Motor Company wrote to the defendant calling attention to the fire loss on the car and advising defendant that such company held a lien on the car in the amount of $500 and requesting to be advised of any settlement. Payment of the claim was refused and defendant tendered plaintiff the premium of $4.75, which tender has been kept good.

Plaintiff brought this suit to recover under the policy. Defendant’s answer set up as a defense a breach of the foregoing- provisions in the policy in that (1), as warranted, the insured car was not fully paid for by the insured, and was not free of any lien, mortgage or other encumbrance thereon; (2) and plaintiff was not, as stated, the unconditional and sole owner of the insured car but that title remained at all times in the Keck Motor Company. No reply was filed by plaintiff. The court tried the cause without a jury and entered a judgment for plaintiff in the amount of $450. Defendant appeals.

The question presented for decision is whether under the facts stated the defense pleaded by the defendant is a bar to recovery under the policy.

The policy states the unequivocal condition that if the ownership of plaintiff’s car is other than sole and unconditional it shall be void. This condition is one precedent to any right of recovery by the insured under the policy. Its fulfilment is a necessary prerequisite to the validity and hence to the operative effect of the policy. (Ballard v. Globe & Rutgers Fire Ins. Co. of N. Y., 237 Mass. 34, 129 N. E. 290.) It is settled that such a condition in a policy of fire insurance rendering the policy void if the interest of the insured be other than unconditional and sole ownership, is reasonable and valid, and that a breach of such condition is a bar to recovery on the policy in the absence of a waiver of the condition or of an estoppel which precludes the company from making its defense. (Pollock v. Connecticut Fire Ins. Co. of Hartford, 362 Ill. 313; Schmieg v. Travelers Fire Ins. Co., 290 Ill. App. 614 [Abst].)

The fact that plaintiff bought the automobile under a conditional sales agreement by Which title was reserved in the vendor until the two notes aggregating $500 were paid is clearly established by the evidence. Some effort was made to throw doubt on this fact at the trial when the plaintiff testified that he didn’t know whether the title was kept and held by the sellers or not. But such testimony is of no evidentiary value when considered in the light of the notes signed by the plaintiff and his wife which stated the sale was a conditional one, and when it appears that plaintiff signed a written application for a certificate of title and therein stated, under oath, that his car was subject to a conditional sales lien in favor of the Keck Motor Company in the amount of $500. Furthermore, plaintiff failed to file a reply denying, as alleged in the answer, that the Keck Motor Company held title to the car. The officers of the seller who testified for the plaintiff said they understood title to the car was retained until paid for and that the seller had the right to repossess the car in the event payment was not made.

We hold that the plaintiff as such purchaser under a conditional sales contract was not the unconditional and sole owner of the insured car within the meaning of the quoted provisions of the policy. The breach of these provisions rendered the policy void. (Schmieg v. Travelers Fire Ins. Co., supra; Pollock v. Connecticut Fire Ins. Co. of Hartford, supra; Hudson Casualty Ins. Co. v. Garfinkel. 111 N. J. Eq. 70, 161 Atl. 195; Ballard v. Globe & Rutgers Fire Ins. Co. of N. Y., supra.)

No waiver of the breach of the condition and warranty as to ownership was pleaded or asserted by the plaintiff. It does not appear that the company or any of its agents had any knowledge of the condition of the plaintiff’s title to the car at the time the policy was issued, or at any time thereafter, and no circumstance was shown indicating a waiver or intention to waive by the company of any of the provisions of the policy. It is true as urged that the plaintiff had an insurable interest in the property. He made no attempt, however, to insure that interest. (Pollock v. Connecticut Fire Ins. Co. of Hartford, supra.)

Plaintiff attaches importance to the fact that there was no written application for the policy and contends that by reason of the lack of such application the quoted provisions in the policy were the statements of the insurer and not of the insured. There is no merit to this contention for these provisions were part and parcel of the contract between the parties and were binding on plaintiff and defendant. A person who accepts and retains the possession of an insurance policy is bound to know its contents. (Pollock v. Connecticut Fire Ins. Co. of Hartford, 362 Ill. 313.)

Defendant’s defense was a complete bar to a recovery and the judgment of the circuit court of Gallatin county is reversed.

Reversed.


text:
    Illinois State Trust Company, Trustee, Appellant, v. J. B. Williams, Appellee.
    Opinion filed June 14, 1940.
    Saul E. Cohn, of East St. Louis, and Russell H. Classen, of Belleville, for appellant.
    Frank M. Summers, of East St. Louis, for appellee; Louie F. Orr, of East St. Louis, of counsel.
   Mr. Justice Dady

delivered the opinion of the court.

Plaintiff, in an action of forcible entry and detainer, obtained a judgment in justice court for the possession of a five-hundred acre farm. An appeal was taken to the circuit court of St. Clair county where, after a trial before a jury, judgment was rendered on the verdict in favor of defendant.

Plaintiff contends the trial court erred in refusing to direct a verdict in its favor at the close of the evidence. Considering the evidence in its aspects most favorable to defendant, we find he was in possession of the farm in 1936; he continued such possession in 1937 as a tenant under a written lease for one year, which lease expired November 4, 1937; he held possession in 1938 as a holdover tenant under such lease; in September of 1938 the parties made a new agreement for a lease of the premises in 1939, and a written lease was executed and placed in escrow. It was agreed orally that upon defendant paying his back rent for the years 1937 and 1938, amounting to $2,600, through the medium of delivering 2,600 bushels of corn by January 1, 1939, the new lease would be delivered and become effective. Thereafter defendant delivered 940 bushels of corn. He requested and received an extension of time until January 20, 1939, to deliver the balance. On or about January 14,1939, plaintiff refused to accept any more corn, although defendant stated he was ready and able to deliver. On January 27th, 1939, this suit was commenced. No more corn was delivered. No offer or tender was made by the defendant at the time of the trial in the circuit court of his willingness, readiness or ability to deliver the balance of the corn.

Plaintiff insists that possession of the farm was unlawfully withheld without right after the termination of the holdover lease for 1938. Defendant contends that “a valid oral contract was made between the parties calling for a certain performance by” defendant “which performance was prevented by” plaintiff, and defendant “was rightfully in possession until allowed to perform.”

Defendant’s right to continue in possession after November 4, 1938, must rest on the new agreement. The effect thereof was not to create a present demise for the new term. It amounted to no more than a covenant to grant the term, upon payment of the back rent in the manner provided, and for a failure to do so the lessee would have two remedies, one an action at law for damages, and the other for a specific performance of the agreement. A lessee’s rights under such a contract are not different from what they would be under a contract of purchase. (Fuchs v. Peterson, 315 Ill. 370.)

Under the present forcible entry and detainer statute the law is settled that where a lessee, such as the defendant in this case, is in possession at the expiration of his term and has a contract for a new lease and has complied with his contract in every particular, he is entitled to the benefits of such lease authorizing him to continue in possession for the new term, and an action of forcible entry and detainer cannot be maintained against him. (Fuchs v. Peterson, supra.)

The question presents itself whether defendant has complied with the terms of the new agreement. The burden of proof, at least prima facie, was on defendant to prove such affirmative defense. If he has made such prima facie case he is entitled to possession; otherwise not. The delivery of the balance of the corn was and is an express condition precedent to his right to the lease. Defendant contends he offered to perform this condition by tendering the balance of the corn before suit was brought. Plaintiff denies such tender was made, but, as said, we assume such tender by defendant and refusal by plaintiff. The fact remains that there is no evidence in the record showing, or tending to show, that at the time of the trial defendant was ready, willing or able to deliver any corn. If he were suing in equity for specific performance, plaintiff’s refusal to accept the corn before suit would not excuse the defendant from making an actual tender of the corn at the time of the hearing. (Bell v. Anderson, 292 Ill. 605; Mitchell v. White, 295 Ill. 135.) The rule under the facts in this case is no different. The prior tender did not satisfy defendant’s duty to deliver the balance of the corn. (Plumb v. Taylor, 27 Ill. App. 238, 13 C. J. 654.) If defendant intended to rely on such act as a defense, it was his duty to keep the tender good by making such tender at the time of the trial and his failure to do so was fatal. (O’Riley v. Suver, 70 Ill. 85; McDaniel v. Upton, 45 Ill. App. 151.) On this record plaintiff was entitled to a judgment for possession.

We do not find it necessary to consider the other questions presented and the judgment of the trial court is reversed and judgment is entered in favor of the plaintiff for possession of the premises in question and execution for possession thereof and for its costs.


author: Mr. Presiding Justice Wolfe

text:
    Home Owners’ Loan Corporation, Appellant, v. Louis W. Joseph et al., Appellees.
    Gen. No. 9,546.
    Opinion filed June 28, 1940.
    Oakleaf & Churchill, of Moline, Bettin Stalling, James B. Croke and Thomas H. Compere, all of Chicago, and E. K. Neumann, of Washington, D. C., for appellant; Cyrus Churchill, of counsel.
    Hayes Murphy, of Moline, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On December 2, 1938, a complaint was filed by the plaintiff, the Home Owners’ Loan Corporation, in the circuit court of Bock Island county, Illinois, against the defendants, Louis W. Joseph, Elizabeth Joseph, Henry A. Schocker, Mabel Schocker, and the Bock Island Bank & Trust Company, a corporation, asking that the plaintiff be subrogated to a tax lien of the State of Illinois, against a certain parcel of real estate in the city of Bock Island, Illinois, on which the plaintiff, a corporation, had previously held a mortgage lien. Summons was issued on December 2, 1938, ipd personal service had upon the defendants, Henry A. Schocker and Mabel Schocker and Bock Island Bank & Trust Company. Louis W. Joseph and Elizabeth Joseph, his wife, were not residents of the State of Illinois, and no action was taken relative to obtaining jurisdiction over these two defendants. The defendants, Henry A. Schocker, Mabel Schocker and the Bock Island Bank & Trust Company, by their counsel, filed their motion to dismiss the suit on December 21, 1938. On December 22,1939, the trial court sustained the motion of the defendants to dismiss the suit. The plaintiff elected to stand on its complaint and the court rendered judgment in favor of the defendants and dismissed the suit at plaintiff’s cost. From the judgment and order of dismissal, the plaintiff has perfected an appeal to this court.

The complaint alleged that on October 29, 1934, the plaintiff loaned the defendant, Louis W. Joseph, then a bachelor, the sum of $7,525 to refinance an indebtedness then existing on his residence property; that the loan was evidenced by a promissory note secured by a real estate mortgage on a part of lots 16 and 17 in Rod-man Heights Addition in the city of Rock Island, Illinois; that Louis Joseph defaulted in his monthly payments and failed to pay the 1934 and 1935 general taxes and special assessments; that the plaintiff declared the entire balance on the note due and filed its complaint in the circuit court of Rock Island on May 21, 1936, to foreclose its mortgage; that on August 15,1936, the foreclosure proceedings were referred to the Hon. James F. Murphy, master in chancery, of said county; that a hearing was had before the master in chancery and proof offered on September 16,1936; that the master’s report was filed in the said circuit court under date of September 17,1936; that the master certified that plaintiff was entitled to a first mortgage lien to secure a total indebtedness of $8,454.79; that on September 17, 1936 (the date of filing of the master’s report), the 1935 taxes were still unpaid and were not included in the mortgage indebtedness shown in the master’s report.

The complaint further alleged that the plaintiff corporation, operates in 48 States and that for the purpose of administration, the various activities of the corporation are handled by different departments; that payment of defaulted taxes on properties against which the corporation holds mortgages is handled by one department, and foreclosures of mortgages in default are handled by another department; that on September 22, 1936, the department handling the payment of defaulted taxes, paid the 1935 taxes on the Joseph premises in the sum of $159.31 to the county collector of Rock Island, Illinois, to protect its interest under its mortgage, and to prevent tax sale of the premises; that notice of such payment was inadvertently not transmitted to the department handling foreclosure suits, until after October 20,1936. The master’s report dated September 16, 1936, was filed in the circuit court on October 20, 1936, and a decree of sale was entered by the court on that date. The master’s report of September 17, 1936, and the decree of court of October 20, 1936, did not include the moneys advanced for taxes on September 22,1936. The mortgaged premises were sold by the master on March 25,1937, to one Henrietta A. Zeis for the sum of $8,900. The sale was approved on April 23, 1937, and a master’s certificate of sale issued to the purchaser. She had knowledge that the plaintiff had paid the 1935 taxes, and that they were not included in the debt decree, and she agreed to reimburse the plaintiff corporation, for the 1935 taxes if she obtained a master’s deed.

On March 23,1938, Louis Joseph redeemed the property from the foreclosure sale, and at that time the plaintiff endeavored to procure reimbursement for the moneys advanced for the 1935 taxes. When he redeemed the property, Mr. Joseph knew that the taxes had been paid by the plaintiff and it had not been reimbursed therefor. Mr. Joseph refused to reimburse plaintiff corporation for the 1935 taxes and the master in chancery issued a certificate of redemption to him under date of March 23,1938. On the same date Louis Joseph and Elizabeth Joseph, his wife, sold the redeemed premises to the defendants, Henry A. Schocker and Mabel Schocker for a consideration in excess of $11,000 and gave them a warranty deed of the same date, which was filed for record on the same date in the office of the recorder of deeds of Rock Island county, Illinois. When they bought the premises the defendants, Henry A. Schocker and Mabel Schocker knew that the plaintiff had paid the 1935 taxes and had never been reimbursed therefor. On March 23, 1938, the Schockers borrowed the sum of $6,500. from the defendant, the Rock Island Bank and Trust Company, and gave a note and real estate mortgage evidencing said indebtedness. The defendant, the Rock Island Bank & Trust Company, knew when it loaned its money, that the plaintiff had paid the 1935 taxes, and had never been reimbursed therefor.

The plaintiff filed a motion in the foreclosure proceedings to vacate the master’s certificate of redemption, which was denied by the court. The present proceeding was then instituted by plaintiff to establish and foreclose the lien for taxes upon the mortgaged premises based upon the doctrine of subrogation. There is no question about the facts in the case, as a motion to strike, admitted all facts well pleaded in the complaint.

The sole question presented to this court is, as stated by appellant, “May a mortgagee who pays taxes on the mortgaged premises after institution of foreclosure proceedings and taking of proof, who inadvertently fails to reopen and take further proof and include the amount for taxes in the decree debt, maintain after sale and redemption by the mortgagor a separate equity action to establish and foreclose its tax lien against the mortgagor, and those claiming under him with notice on the theory of subrogation or unjust enrichment?” It will be observed that the plaintiff is making no attempt to enforce a personal,action against the original mortgagor, but is basing its contention wholly upon the theory that by payment of the 1935 taxes, it is entitled to a lien upon the mortgage premises covered by the original mortgage. Neither the Supreme Court nor the Appellate Courts of this State have had occasion to pass upon this precise question. Other State courts have passed upon this question and have held that such an action cannot be maintained. The Supreme Court of Nebraska in the case of Johnson v. Payne, 11 Neb. 269, 9 N. W. 81, decided the same question. The facts and law are well summarized in the syllabus, which is as follows: “A mortgagee, for the protection of his security, has the right to pay the taxes thereon, or to redeem the same from tax sale. The amount which he is required to pay for such purpose is a valid claim against the mortgagor, enforcible in the same manner as a mortgage debt, and continuing until the satisfaction of the mortgage. "Whatever amount is due under the mortgage at the time of foreelosure, including taxes so paid, constitutes but a single and indivisible demand, and cannot be separated and collected by several actions. ’ ’ The Supreme Court of Nebraska passing upon this question quotes with approval Hitchcock v. Merrick, 18 Wis. 357.

In the case of Vincent v. Moore, 51 Mich. 618,17 N. W. 81, the opinion was written by the well-known Judge Cooley. The case is very short and states the facts and the law relative thereto. We quote in full and is as follows : ‘ ‘ The bill in this case appears to be filed to enforce the payment of a sum of money which complainants paid to redeem from a tax sale certain lands belonging to defendant, and upon which complainants, at the time of redemption, held a mortgage. The redemption, it is assumed, was made for the protection of the mortgage; but complainants went on afterwards and foreclosed the mortgage under the power of sale, taking no notice of what they had paid for taxes and making no claim for the amount. The land was sold in the foreclosure proceedings, and bid in for the amount of the mortgage debt, and defendant redeemed from that sale. This suit was then instituted. We think there is no foundation for it. What complainants were compelled to pay for the protection of their mortgage did not constitute a separate and independent lien on the land; it could become a lien only in connection with and because of the mortgage, and could not exist independent of it. When therefore complainants took proceedings which resulted in a satisfaction of the, mortgage, any lien which may have existed before for the taxes paid was necessarily discharged, whether the amount paid was claimed in those proceedings or not. All that complainants could claim by virtue of the mortgage they were bound to claim in those proceedings, and they could not at pleasure split up their demand and make the parts the subjects of separate suits.”

The Supreme Court of Iowa in Dickinson v. White, 64 Iowa 708, 21 N. W. 153, had the same question before them that is presented to us, and in their opinion they say:

“That defendant had a lien on the premises for the amounts paid by Rix, Hale & Co., as taxes on the mortgaged premises, cannot be doubted. But his lien in this respect was under the mortgage. It was created by the contract between the mortgagor and the mortgagee, that any sums which should be paid by the latter for such purpose should be added to the indebtedness secured by the mortgages. An ordinary purchaser at tax sale acquires by his purchase the lien on the property of the county and state for the taxes due. But, as Rix, Hale & Co. had a contract with Hardin that they should have the security of the mortgage for any amounts which they might pay for taxes on the premises, the law treats their transaction of bidding in the property at the tax sale as a mere payment of the taxes, and gives them a lien for the amount under their contract. At the time the judgment of foreclosure was taken, then, the mortgages were security for the amounts paid out in the purchases at the tax sales and in payment of the subsequent taxes, as well as for the original indebtedness, and defendant was clearly entitled to have all of said amounts included in his judgment against Hardin. He took judgment, however, but for the amount of the original debts, and he sold the whole of the mortgaged premises for the satisfaction of that amount.

“It is very clear, we think, that the lien of the mortgage was thereby exhausted, and that the purchaser took a clear and absolute title to the premises. The case is not at all distinguishable in principle from Poweshiek County v. Dennison, 36 Iowa 244. And the fact that plaintiff knew when he purchased the premises that defendant was claiming a lien thereon for the amount of the taxes, separate from the lien of the mortgage, in no manner changes the effect of the sale, for, as we have seen, the only lien which defendant had for said amounts was under the mortgage.”

The circuit court of appeals, 8th circuit in the case of Northern Finance Corp. v. Byrnes, 5 F. (2d) 11, at p. 13 held that such an action could not be maintained, and in their opinion use this language: “Further, the appellant has pursued the wrong remedy. It is the law of Missouri (Horrigan v. Wellmuth, 77 Mo. 542) that a right to pay the taxes inured to the appellant here as mortgagee, and that if he pays them outside of that relation, it would be a voluntary payment, which would not support an action. It will be noted from the chronological statement of fact that this money was loaned by appellant, while the foreclosure proceedings were pending, but before sale. Under the law of Missouri, he could have had the amount of the taxes, under the doctrine of the above and other Missouri cases, included in his mortgage debt, for the payment of which the property was sold before he ever applied to the federal court. In Carter v. Phillips, 49 Mo. App. at page 324, it is held that a mortgagee’s claim for such taxes must be enforced as part of the mortgage debt, and not otherwise, and if, as here, the mortgagee permits the property to go to sale without adjustment of his claim for taxes, he would not be permitted to maintain an independent action for debt against the mortgagor, or an action in equity for the enforcement of the tax lien by virtue of the law of subrogation. The judgment of the lower court is affirmed.”

The Supreme Court of Rhode Island, in the case of Citizens Sav. Bank v. Guaranty Loan Co., — R. I. —, 6 Atl. (2d) 688,123 L. A. R. 1236, in a similar case held that a mortgagee who has paid taxes on mortgaged property to protect his security cannot after foreclosure proceedings, maintain an individual action against the mortgagor to recover the amount so paid since such payment does not grant a lien or liability apart from that of the mortgage. The court, in its opinion, quotes with approval Horrigan v. Wellmuth, 77 Mo. 542. Numerous other State court decisions are cited as sustaining the decision of the Rhode Island court.

We are aware that other State courts have held that such actions can be maintained and that the plaintiff under such circumstances, would be entitled to a lien on the premises on which it formerly held a mortgage for the amount of the tax paid. We think the better rule and the weight of authority is contrary to such holding.

It is our conclusion that when the court entered its decree of sale in foreclosure, and included all that the plaintiff claimed was due under its mortgage, and since the plaintiff failed to have its decree modified before the sale of the mortgage premises and have the taxes that they had advanced for the year of 1935 included in the decree of sale, they are now barred from maintaining a suit in equity to have a lien declared upon the former mortgage premises, for the amount of taxes which they had advanced. The order appealed from is affirmed.

Affirmed.


author: Mr. Justice Dove

text:
    N. Jennie Riddle, Appellant, v. Geo. H. Todd and Arthur Todd, Trading as White & Todd, Appellees.
    Gen. No. 9,547.

      Opinion filed June 28, 1940.
    Beamish, Edwards & Brunnemeyer, of Aurora, for appellant; Harold L. Beamish, of counsel.
    Mighell, Allen, Matthews & Jordan, of Aurora, for appellees; Everett Jordan, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

On April 26,1922, Oliver A. Burkhart and Carrie J. Burkhart, his wife, executed their several notes aggregating $16,000 and secured the payment thereof by a trust deed, by which they conveyed to Frank H. Biddle, trustee, certain farm lands in Kane county. These notes were held and owned by Lottie Perrine, William Holzheuter, Charles Carnes, Peter Weber and the said Frank H. Biddle. In 1929 Frank H. Biddle was indebted to the firm of White & Todd lumber dealers in the sum of $1,787.83 and on or about April 10, 1929, Biddle delivered three of the Burkhart notes aggregating $3,000 to Messrs. White and Todd as security for his indebtedness to them. On December 27,1930, White and Todd, together with the other noteholders, filed a bill in the circuit court of Kane county to foreclose the Burkhart trust deed which resulted in a decree of foreclosure and sale. This decree found the amount due the several noteholders, including Messrs. White and Todd, and directed the master to sell in case of default. On November 2, 1932, the master in chancery sold the premises described in the Burkhart trust deed to Judge Olney C. Allen who acted for and on behalf of the several noteholders, for $23,000 and on November 11, 1932, he accepted as part payment of the purchase price a receipt executed by the attorneys representing Messrs. White and Todd, for $4,723.46, being the amount found by the decree to be due, together with $23.62 interest thereon, leaving a deficiency due them of $78.38. On November 21, 1932, the master filed his report of sale showing that he had accepted this receipt of Messrs. White and Todd for $4,723.46 which he credited upon the purchase price, that there remained due them the sum of $78.38, that they had expended in connection with said foreclosure suit $187.50 for taxes, $61 for extending the abstract of title, $344.85 attorney fees and $25 for costs, being a total of $618.35. The master further reported that the amount due from Frank H. Riddle to Messrs. White and Todd for the payment of which Messrs. White and Todd had held the Burkhart notes was $2,260.76, which amount, together with said sum of $618.35 aggregates $2,879.11.

On December 31, 1937, the instant complaint was filed by M. Jennie Riddle in the circuit court of Kane county against George H. Todd and Arthur Todd, a partnership doing business as White and Todd, alleging that she was the assignee of the said Frank H. Riddle and invested with all the right and title to the proceeds of the Burkhart notes hereinbefore referred to, that Frank H. Riddle, on April 10, 1928 had deposited those notes with Messrs. White and Todd as security for the payment of the amount due them from Frank H. Riddle, that the trust deed securing the payment of those notes had been foreclosed, that following the sale of the property described in the trust deed, Messrs. White and Todd had received an amount in excess of the amount due them from Frank H. Riddle and prayed for an accounting. The defendants answered, setting forth in detail the transactions of the parties. A hearing was had before the chancellor, resulting in a decree finding the facts as herein stated and further finding that at the master’s sale on November 2, 1932, there were no bidders present; that by an agreement of all the noteholders, including White and Todd, Judge Allen bid in the property for $23,000, being the face value of all the notes secured by said trust deed, together with accrued interest thereon, as trustee for all of said noteholders; that the master received no money, other than the costs, but accepted receipts from the various noteholders for the respective amounts due them; that the defendants never received any sum of money whatever as a result of said sale, nor did any of the other noteholders; that in said foreclosure proceeding Frank H. Riddle was not a party in his individual capacity and that no effort was made in the foreclosure proceedings to foreclose the pledge of the interest Frank H. Riddle had in the notes which he had theretofore pledged to the .defendants White and Todd; that the pledge exists; that the effect of the foreclosure proceedings was to place the title of the premises covered by the trust deed in Judge Allen as trustee for the benefit of all the noteholders and the certificate of beneficial interest in the premises issued by Judge Allen to the defendants White and Todd stands in lieu of said notes which Frank H. Riddle had pledged to White and Todd and that the plaintiff, as assignee of Frank H. Riddle, is not entitled to an accounting or entitled to recover any amount of money from the defendants, nor is she entitled to the certificate of beneficial interest issued to the defendants by Judge Allen until the amount due the defendants from Frank H. Riddle has been paid in full. The decree dismissed the complaint for want of equity at the costs of the plaintiff and to reverse that decree plaintiff appeals.

The evidence discloses that there was no agreement between the pledgor and pledgee respecting the notes which Frank H. Riddle lodged with appellees to secure his indebtedness to them and counsel for appellant state in their brief that under the circumstances shown to exist here appellees had a right to join with other holders of the notes secured by the Burkhart trust deed and foreclose the same. Peacock v. Phillips, 247 Ill. 467. Counsel contend, however, that appellee’s character was that of trustee for the pledgor and that it was their duty, as such trustee, to collect said notes and when collected to retain the amount due them and pay over the balance to the pledgor or to appellant as his assignee. Counsel’s argument is that the premises covered by the trust deed were sold by the master and that appellees, as noteholders, receipted for their proportionate part of the sum realized from said sale, that appellees are bound by the recitals in their receipt to the master and must be held to have collected that amount and are therefore liable to account to appellant for the excess over and above the amount due them on the indebtedness of Frank H. Biddle to them. The trouble with this argument is that appellees have not only never received any excess over and above the amount due them upon the Frank H. Biddle indebtedness but have never been paid or received any part thereof. All that the foreclosure proceedings did was to change the form of their security. Counsel concede they had a right to foreclose and if at the foreclosure sale a stranger had purchased the property and appellees, as pledgees, had received a sum in excess of the amount due them, then they would have been liable to account for the excess to the pledgor or his assignee. Frank II. Biddle, the pledgor, was not made a party to the foreclosure proceedings and he was not bound by order or decree entered therein and that proceeding did not foreclose the pledge existing between him and appellees. . The foreclosure of the trust deed did not affect the pledge but only changed the form of appellee’s security and the bidding in of the property by Judge Allen as trustee did not constitute a sale in the sense that the price bid was a payment of Frank H. Biddle’s debt to appellees.

In Farmers’ Savings Bank v. Lesky, 6 F. (2d) 539, it appeared that S. K. Lesky in 1919 borrowed $1,000 from the Farmers Savings Bank of West Plains, Mo., evidencing the same by his note due six months after date and pledged with the bank as collateral security therefor a promissory note for $4,500 secured by a mortgage on 320 acres of land in Montana. After the maturity of the principal note the bank, with the knowledge and at the request of Lesky foreclosed the mortgage on the Montana land and at the sale bid in the land for $5,625.59, of all of which Lesky had notice. Subsequently Lesley sought to recover of the bank the difference between the amount of his indebtedness to the bank and said sum of $5,625.52. In holding that there could be no recovery the court in its opinion said: “The note secured by the Montana mortgage was at all times the property of plaintiff. It was by him pledged to the bank as collateral security to the debt he owed it. At any time after maturity of his note he could have redeemed the same by paying his debt to the bank. As this was not done, the bank could hold the pledged security until its debt was paid. In the foreclosure suit in Montana the bank merely acted as the agent or representative of plaintiff. Any title it took to the mortgaged property in Montana it took for the use and benefit of plaintiff, and at any time the debt due the bank from plaintiff was paid, and the reasonable costs and expenses incurred by the bank in the foreclosure suit, the bank would be compelled to convey the Montana land to plaintiff, for the title was taken for his use and benefit. Had the bank, after taking title to the mortgaged premises, conveyed the same to a third party, it must have accounted to plaintiff for the proceeds, or the value of the land conveyed, if of greater value than received by the bank. To this extent go all the authorities on the subject. In First Nat. Bank v. Ohio Falls Car & Locomotive Works, (C. C.) 20 F. 65, Woods, Judge, stated the rule as follows: ‘It has been held in a number of instances, and seems to be well established, that where a mortgage of real estate has been assigned as collateral security for a debt other than the mortgage debt, and the holder of the collateral forecloses the mortgage, without making the assignor party to the purchase, and becomes the purchaser under the decree, the sale extinguishes the mortgagor’s right of redemption only, and does not otherwise affect the relations of the assignor and assignee of the collateral. The property, as well after foreclosure as before, is held for the benefit of both pledgor and pledgee, and must be disposed of for the benefit of both. The price bid at such sale does not operate as payment upon the debt for which the mortgage was pledged. Brown v. Tyler, 8 Gray (Mass.) 135 (69 Am. Dec. 239); Montague v. Boston & A. R. Co., 124 Mass. 242; Stevens v. Dedham Inst., etc., 129 Mass. 547; Slee v. Manhattan Co., 1 Paige (N. Y.) 48; Hoyt v. Martense, 16 N. Y. 231; Dalton v. Smith, 86 N. Y. 176; Smith v. Bunting, 86 Pa. 116; Jones, Pledges, §§ 659, 683.’ See, also, Nevius v. Moore, 221 Mo. 330, 120 S. W. 43; Holloway v. Holloway, 103 Mo. 274, 15 S. W. 536; In re Estate of Gilbert, 104 N. Y. 200, 10 N. E. 148. The plaintiff seems to rely on First National Bank of Kansas City, Mo. v. Rush, 85 P. 539, 29 C. C. A. 333, decided by this court. However, consideration of that case fails to disclose it has any application here. At any time before foreclosure, plaintiff could have paid his note to the bank and taken down his collateral pledged. At any time during or after foreclosure of the Montana mortgage, he could have paid his indebtedness to the bank, evidenced by his promissory note, and the reasonable cost and expenses of the bank in acting as his representative in foreclosing the Montana mortgage, and after conveyance of the land to the bank compelled the bank to convey the same to him. His right of redemption of his property pledged was the only right of action had by him, under the circumstances, and such action was unnecessary in this case, because the bank had offered to convey on payment of its just demands. ”

So in the instant case the evidence discloses that appellees offered at all times to turn over to Mr. Biddle, or his mother, the appellant, the beneficial interest they hold in the farm, title to which is held in Judge Allen, trustee, and assign to the pledgor or his assignee the beneficial certificate so evidencing their interest upon payment of the amount dne from Chas. H. Biddle to appellees. All that appellees have is a beneficial interest in the land which was formerly covered by the trust deed which secured the payment of the notes which appellees held as collateral security for the payment of the indebtedness of Chas. H. Biddle and the evidence is that the income from this land is not sufficient to pay the taxes thereon. It is true that in the instant case Frank H. Biddle did not- direct appellees to join with the other noteholders to foreclose, nor did he sign the agreement executed by the noteholders and Judge Allen but the effect of that arrangement was the same as if appellees had purchased the premises and taken title thereto in their own name and the result of so doing was simply to work a change in appellees’ security. HuntingdonValley Trust Co. v. Norristown-Penn Trust Co., 329 Pa. 356,196 Atl. 821.

In re Gilbert, 104 N. Y. 200,10 N. E. 148, it was held that where an assignee of a mortgage as collateral security purchased the property under foreclosure in a suit to which the pledgor was not made a party, the land is substituted for the mortgage and the assignee holds it as security merely, subject to the assignor’s right to redeem. In First Nat. Bank v. Ohio Falls Car & Locomotive Works, 20 Fed. 65, it was held that where a mortgage of real estate has been assigned as collateral security for a debt other than the mortgage debt and the holder of the collateral forecloses the mortgage without making the assignor a party, and becomes the purchaser under the decree, the sale extinguishes the mortgagor’s right of redemption only and does not otherwise affect the relations of assignor and assignee of the collateral.

The author of the annotation in 76 A. L. R. 730 citing many cases, states that when a pledgee, holding as collateral security a note secured by mortgage, forecloses the mortgage by a suit to which the pledgor is not made a party, without authority to purchase being expressly granted, that then, only the mortgagor’s equity of redemption is foreclosed and the pledgee thereafter holds 'the land merely as security for his debt, or if the land has been disposed of, he is accountable for the proceeds received on such disposition.

In Anderson v. Olin, 145 Ill. 168, Sven O. Olin, the pledgee of notes secured by a real estate mortgage, foreclosed the same. A sale was had and he became the purchaser and obtained, in due time, a deed to the premises. Thereafter the pledgor, Peter W. Anderson, filed a bill against the pledgee to redeem from this foreclosure sale. In affirming a decree which dismissed his bill for want of equity the court pointed out the fact that the original foreclosure bill prayed that the rights and equities of Anderson be foreclosed, that Anderson was made a party and was served with process of summons and the decree followed the prayer of the' bill and the court held that this decree, in express terms, cut off Anderson’s right of redemption and that . therefore there was no tenable ground for holding that Olin’s purchase must be deemed to have been in trust for his pledgor. In the instant case Biddle, the pledgor, was not made a party defendant and the plaintiffs in that suit did not seek to divest Chas. H. Biddle of any of his rights. The sole object of the foreclosure proceeding was to foreclose the mortgagor’s equity of redemption and neither the bill nor decree made any reference whatever to the right of the assignor to redeem and in no way cut off or attempted to cut off his rights. Appellant concedes appellees had a right to foreclose the trust deed and this is all they did. That proceeding in no way affected Riddle’s right to redeem. After the sale appellees held the same security as before only in a changed or altered form.

The decree appealed from was warranted by the evidence and is in accordance with the authorities and should be affirmed.

Decree affirmed.


author: Mr. Justice Huffman

text:
    Board of Education of Grant Community High School District No. 121, Lake County, Appellant, v. Board of Education of Richmond-Burton Community High School District No. 157, McHenry County, Appellee.
    Gen. No. 9,569.
    Opinion filed June 28, 1940.
    Charles E. Jack, of Waukegan, and Richard F. Locke, of Glen Ellyn, for appellant.
    Floyd E. Eckert and Arthur G. Waite, of Woodstock, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

The amended complaint in this case charges that appellant district is a duly organized high school district situated entirely within Lake county, Illinois; that appellee district is a duly organized high school district situated entirely within McHenry county, Illinois; that the county superintendent of schools in and for McHenry county, approved the transfer of certain resident students of appellee district to appellant district; that pursuant to such transfer, these students attended the high school in appellant district for the school years of 1930-1931 and 1931-1932; that because of such transfer of the students from appellee district to appellant district, appellee district thereby became indebted to appellant district for certain tuition, as claimed in the complaint.

Appellee district filed its motion to dismiss the amended complaint, on the ground that under section 96 of the school law, providing for the attendance of a pupil in a district other than that in which he resides, and where the two districts lie in more than one county, the pupil so transferred must have the approval of the county superintendent of each of the counties involved, before the district in which he resides can be charged with his tuition. Upon this motion the court dismissed the complaint and appellant brings this appeal.

It appears that the pupils transferred from appellee district to appellant district at the instance of the county superintendent of appellee district, did not have or receive the approval of the county superintendent of appellant district for such transfer. The order of the trial court dismissing the complaint and its judgment against appellant district was proper. Board of Education Onarga Township High School v. Board of Education Thawville Community High School, 308 Ill. 231; Board of Education Blue Mound Community High School v. Board of Education Stonington Community High School, 312 Ill. 31.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.


author: Presiding Justice Denis E. Sullivan.

text:
    Woodlawn Union Baptist Church et al., Appellants, v. Hamilton D. Martin et al., Appellees.
    Gen. No. 41,051.
    opinion filed June 19, 1940.
    William. H. Haynes and William H. Harrison, for appellants;
    no appearance for appellees.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Not to be

published in full.”


text:
    Howard K. Morse, Appellant, v. Association of Arts and Industries, Appellee.
    Gen. No. 41,068.
    Burke, J., dissenting.
    opinion filed June 19, 1940.
    Burry, Johnstone, Peters & Dixon, for appellant; John O. Trussell, of counsel; Wetten, Pegler & Dale, for appellee.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    In re Estate of Charles M. Bump, Deceased. Laura George Watson, Appellee, v. Edward R. Monroe, Appellant.
    Gen. No. 41,098.
    opinion filed June 19, 1940.
    George Delbert Gray and William H. Haight, for appellant; J. Paul Dunne, for appellee.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Not to be published in full.”


author: Justice Burke.

text:
    Joseph Cacciatore, Appellant, v. Raymond Rovello and Mary Rovello, Appellees.
    Gen. No. 41,168.

      opinion filed June 19, 1940.
    Taylor, Cuttone, Partridge & Parker, for appellant; Ode L. Rankin, of counsel; no appearance for appellees.
   Opinion by

Justice Burke.

“Not to be published in full.”


author: Justice Hebel.

text:
    Firestone Tire and Rubber Company, Appellee, v. Robert H. McElroy, Jr. et al., Defendants. Appeal of Robert H. McElroy, Jr., Appellant.
    Gen. No. 41,165.
    opinion filed June 19, 1940.
    William E. Cloyes and Herbert J. Choice, for appellant; James G. Barber, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    Helen Jensen, Appellant, v. City of Chicago, Appellee.
    Gen. No. 41,208.

      opinion filed June 19, 1940.
    V. Russell Donaghy, for appellant; David A. Sehallman and Joseph P. Power, of counsel; Barnet Ho des, Corporation Counsel, for appellee; Alexander J. Besa, L. Louis Karton and Louis H. Geiman, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    Frank Rago, Appellee, v. Thomas Naples, Appellant.
    Gen. No. 41,219.
    opinion filed June 19, 1940.
    Kirkpatrick, Mathias & Meloy, for appellant; Harry Meloy, of .counsel; Guy C. Guerine, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.”


author: Presiding Justice Matchett.

text:
    Anderson and Lind Manufacturing Company, Appellant, v. Charles H. Albers, Receiver of Laramie State Bank of Chicago, Appellee.
    Gen. No. 41,003.
    opinion filed June 24, 1940.
    Charles A. McDonald and Gustave B. Ehnborn, for appellant; Gustave B. Ehnborn, of counsel; Jetzinger & Quinn, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


text:
    Cullet Corporation of America, Appellee, v. David Rosenberg, Appellant.
    Gen. No. 41,007.
    opinion filed June 24, 1940.
    Isadore Kaplan, for appellant; Harry P. Brewer, of counsel; Sidney J. Sparberg, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in fuU.”


text:
    Sam Seidman, Appellant, v. Fred C. Bachtel, Appellee.
    Gen. No. 41,034.
    opinion filed June 24, 1940.
    Herman L. Aaron, for appellant; E. C. Weichbrodt, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.’’


text:
    Arthur Wick, Trustee in Bankruptcy of Estate of Karl F. Goy, Appellant, v. Elizabeth O. Weiler, Appellee.
    Gen. No. 41,048.
    opinion filed June 24, 1940.
    John A. Niemeyer and George B. Cohen, for appellant; P. P. Flick, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.’’


author: Justice McSurely.

text:
    Frank J. Stastny, Appellee, v. Francis Karel, Appellant. Francis Karel, Appellant, v. Frank J. Stastny, Appellee.
    Gen. Nos. 40,897 and 40,961.
    opinion filed June 24, 1940.
    Brenner & McBride and Ode L. Rankin, for appellant; Ode L. Rankin and Thomas G. McBride, of counsel; Fred I. Simon, for appellee.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


text:
    Sam Lang, Appellant, v. Illinois Greyhound Lines, Inc., Appellee.
    Gen. No. 41,061.
    opinion filed June 24, 1940;
    rehearing denied July 8, 1940.
    Frank E. Gettleman and Julius S. Neale, for appellant; Clarence T. Morse, of counsel; Ryan, Condon & Livingston, for appellee; John M. Tuohy, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


author: Justice O’Connor.

text:
    People of the State of Illinois ex rel. Oscar Nelson v. Union Bank of Chicago. Victor Bartoli, Sr., Guardian, Appellant, v. Harry R. Spellbrink, Receiver, Appellee.
    Gen. No. 40,826.
    opinion filed June 24, 1940.
    Arthur E. Walsh, for appellant; Schuyler & Hennessy, for appellee; Theodore E. Zahler and C. Ernest Heaton, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    Esther Mosher, Appellant, v. Joseph Kantor et al., National Van Lines, Inc., Appellee.
    Gen. No. 41,022.
    opinion filed June 24, 1940;
    rehearing denied July 8, 1940.
    Turner, Kaplan & Turner, for appellant; Maurice Turner, of counsel; Irving G. Zazove, for appellee.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    Bertha Montgomery et al., Appellants, v. Maud Coles Whitlock et al., Appellees.
    Gen. No. 41,031.
    opinion filed June 24, 1940.
    Henry C. Ferguson, for appellants; A. F. W. Siebel and Arthur F. Siebel, for appellees.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    Clara A. Hoffman, Individually and as Administratrix of Estate of Helena Engelking, Deceased, Appellee, v. Arthur Engelking et al., Appellants.
    Gen. No. 41,343.
    opinion filed June 25, 1940.
    Wolff, Keane, O’Leary & Gomberg, for appellants; Philip Bairn, for appellee.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


author: Presiding Justice Friend.

text:
    Bella Zemel, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 41,039.
    opinion filed June 26, 1940;
    rehearing denied July 9, 1940.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and Albert E. Hallett, Jr., of counsel; Peter Fitzpatrick and Novak & Ostrom, for appellee; Peter Fitzpatrick and George A. Askounis, of counsel.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


text:
    Harold A. Fein, Appellee, v. Taylor Washing Machine Company, Appellant.
    Gen. No. 41,050.
    opinion filed June 26, 1940.
    Kamfner & Halligan and Louis J. Victor, for appellant; Edwin A. Halligan and Samuel M. Lanoff, of counsel; Harold A. Fein, pro se; Edward S. Altersohn, of counsel.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


text:
    Catherine Caporale, Appellee, v. The Sovereign Camp of the Woodmen of the World, Now Known as Woodmen of the World Life Insurance Society, Appellant.
    Gen. No. 41,153.

      opinion filed June 26, 1940.
    William E. Mooney, for appellant; Ellidor M. Libonati, for appellee; Abraham Miller, of counsel.
   Opinion by

Presiding Justice Friend.

‘ ‘Not to be published in full.”


author: Justice Scanlan.

text:
    Charles H. Davis, Appellant, v. Raymond R. Dowdle, Appellee.
    Gen. No. 40,626.
    opinion filed June 26, 1940.
    Nat M. Kahn, for appellant; no appearance for appellee.
   Opinion by

Justice Scanlan.

‘‘Not to be published in full.”


text:
    Hugh J. Sands and Mary Sands, Appellees, v. Sack Realty Company, Inc., Appellant.
    Gen. No. 40,667.
    opinion filed June 26, 1940.
    Wilhartz & Hirsch, for appellant; J. S. Greenberg, of counsel; O’Brien & Jordan, for appellees; Andrew D. Jordan, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Robert Linden Wilhite, Appellant, v. Sarah Jane Wilhite, Appellee.
    Gen. No. 40,742.

      opinion filed June 26, 1940.
    Walter Hamilton, for appellant; Albert Peterson, for appellee; Maurice M. Briggs, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Mary Thorne, Appellee, v. Chicago Orpheum Company, Sued Herein as the R. K. O. Palace Theatre, Appellant.
    Gen. No. 40,773.
    opinion filed June 26, 1940.
    Ross & Berehem, for appellant; Levisohn & Levisohn, for appellee.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Sophia Y. Laita, Appellant, v. Walter Laita, Appellee.
    Gen. No. 41,035.

      opinion filed June 26, 1940.
    Teed, Kammermann & Johnson, for appellant; Hugh E. Johnson and Clarence Kammermann, of counsel; Albert C. Boehm, for appellee; Albert C. Boehm and Raymond R. Stern, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


author: Justice John J. Sullivan.

text:
    People of the State of Illinois ex rel. Edward J. Barrett, Appellee, v. Depositors State Bank. Helen Schymanski, Appellant, v. Charles H. Albers.
    Gen. No. 40,232.
    opinion filed June 26, 1940.
    Laurence B. Jacobs, for appellant; Mareellus W. Meek and Roy S. Gaskill, of counsel; Altheimer, Woods & Smith, for appellee; Lewis L. Levin and Charles H. Blumenfeld, of counsel.
   Opinion by

Justice John J. Sullivan.

‘ ‘Not to be published in full.”


text:
    Felix Centracchio, Appellant, v. Charles Hill, Appellee.
    Gen. No. 41,189.
    opinion filed June 26, 1940.
    Coghlan & Coghlan, for appellant; John P. Coghlan, of counsel; John D. Vosnos, for appellee.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”,


text:
    Fred A. Haase, Conservator, and Fred A. Haase, Individually, Appellee, v. Anna L. Haase et al., Defendants. Appeal of Anna L. Haase, Appellant.
    Gen. No. 41,262.
    opinion filed June 26, 1940.
    Maurice Lavine and David J. A. Hayes, for appellant; Daniel A. Wolf, for appellee.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


author: Justice HcSurely.

text:
    Mike Sufa and Regina Sufa, Appellees, v. Ladislaw Vacek et al., Defendants. Appeal of Ladislaw Vacek and Marie Vacek, Appellants, Gen. No. 41,010. Appeal of Marie J. Tucek and Vacek and Company, Appellants, Gen. No. 41,075. Cross Appeal of Mike Sufa and Regina Sufa, Cross Appellants.
    Gen. Nos. 41,010, 41,075.
    opinion filed July 2, 1940.
    Grablowski & Kanak, for appellants; Ode L. Rankin, of counsel; Heile, Cavender, Milchrist & Kaiser and T. J. Szmergalski, for appellees; H. L. Cavender, of counsel.
   Opinion by

Justice HcSurely.

“Not to be published in full.’’


text:
    New York Central Railroad Company, Appellant, v. Thomas D. Palella et al., Individually and Trading as Palella Brothers, Appellee.
    Gen. No. 41,052.

      O ’Connor, P. J., dissenting.
    opinion filed July 2, 1940.
    Sidney C. Murray, Frederick W. Flott and John B. Kneipple, for appellant; no appearance for appellee.
   Opinion by

Justice McSurely.

“Not to be published in full.”


author: Justice Matchett.

text:
    John B. Bobzien, Appellee, v. Benjamin Michael Schwartz et al., Defendants. Appeal of Metropolitan Trust Company, Intervening Petitioner, Appellant.
    Gen. No. 41,069.
    opinion filed July 2, 1940.
    Fink & Daniels, for appellant; Meyer Fink and Harry Shapiro, of counsel; Litsinger, Healy, Reid & Bye, for appellee; Lawrence Spuller, of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


author: Presiding Justice Stone.

text:
    William Millas, Appellee, v. Gulf Insurance Company of Dallas, Texas, Appellant.
    opinion filed June 14, 1940.
    Taylor, Chasnoff & Willson, J. H. Cunningham, Jr. and Warnock, Williamson & Burroughs, for appellant; Jesse R. Brown and Perry H. Hiles, for appellee.
   Opinion by

Presiding Justice Stone.

‘ ‘Not to be published in full.’ ’


text:
    Town of Centreville, Appellant, v. Frank Reinhardt, Appellee.
    opinion filed June 14, 1940.
    Thos L. Fekete, Jr., for appellant; Kramer, Campbell, Costello & Wieehert, for appellee.
   Opinion by

Presiding Justice Stone.

“Hot to be published in full.’’


text:
    A. H. Sebastian, Appellant, v. School Directors of District Number Fifty-Three, County of Clinton, Appellees.
    opinion filed June 14, 1940.
    Layman & Johnson, for appellant; W. W. Johnson, of counsel; William R. Murphy and Maurice B. Johnston, for appellees.
   Opinion by

Presiding Justice Stone.

‘ 'Not to be published in full.”


author: Justice Culbertson.

text:
    Minnie Andrews, Administratrix of Estate of Frank L. Andrews, Deceased, Appellant, v. Asa Mattewson and Charles W. Henninger, Appellees.
    opinion filed June 14, 1940.
    Ray Stroud and Walter C. Klitzing, for appellant; Arthur Roe, for appellees.
   Opinion by

Justice Culbertson.

‘‘Not to be published in full.”


author: Presiding Justice Wolfe.

text:
    Gerhard Habben, Appellant, v. Vern Robertson, Appellee.
    Gen. No. 9,540.
    opinion filed June 28, 1940.
    Pallissard & Smith, for appellant; Malo & Bell and Arthur Bohn, for appellee.
   Opinion by

Presiding Justice Wolfe.

‘ ‘Not to be published in full.”


text:
    Herbert C. Whitman, Respondent, v. Arthur B. Cook, Petitioner.
    Gen. No. 9,548.
    opinion filed June 28, 1940.
    Sig. B. Nelson and Burrel Barash, for petitioner; Hardy, Hardy & Witherell and Alvah S. Green, for respondent.
   Opinion by

Presiding Justice Wolfe.

‘ ‘Not to be published in full.”


text:
    Whitaker Farmers Grain Company, Appellee, v. Joseph Soucie, Appellant.
    Gen. No. 9,553.
    opinion filed June 28, 1940.
    Arch F. Nuttall, for appellant; Savage & Holbrook and Charles J. McKeown, for appellee.
   Opinion by

Presiding Justice Wolfe.

‘ ‘Not to be published in full.”


author: Justice Huffman.

text:
    William Mayhak, Appellee, v. Edward J. Meyers Company, Appellant.
    Gen. No. 9,561.
    opinion filed June 28, 1940.
    Hall & Hulse, for appellant; Harry A. Hall and Marshall Meyer, of counsel; L. Erie Carey, for appellee.
   Opinion by

Justice Huffman.

‘‘Not to be published in full.”