text:
    William Hawk, for use, etc., v. William T. Ament.

      Attorneys — Lien on Judgment for Fees and, Disbursements — Contract— Assignment of Judgment — Notice—Inquiry.
    1. An attorney may, by previous agreement with his client, acquire an equitable lien on a judgment recovered or the subject-matter of the litigation and proceeds thereof, for his fees and disbursements in the case.
    2. A lien so acquired takes precedence of the claim of a subsequent assignee without notice, the interest of an assignee of a chose in action being limited by the equities of his assignor.
    8. It seems that, where the assignee of a judgment is put upon inquiry, he must, in making a reasonable effort to ascertain whether any claim exists against it, make inquiry of the attorney of the judgment creditor.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Livingston County; the Hon. Alebed Sample, Judge, presiding.
    Mr. J. A. McKenzie, for appellant.
    The agreement between Hawk and Ament was legal, and was nothing more nor less than an agreement by parol for a conditional fee. He was to have a one-half interest for his services.

      An attorney has no lien upon the judgment for his services. Forsythe v. Beveridge, 52 Ill. 268; Nichols v. Pool, 89 Ill. 494; La Framboise v. Grow, 56 Ill. 202.
    If Mr. Ament’s arrangement was anything other than simply an agreement for a conditional fee, if it was a present sale of one-half the chose in action absolutely, and would be good as against subsequent bona fide purchasers without notice, then, had the railway compromised the claim and paid the agreed amount to Hawk, it would still have been responsible to Ament for his half, which was to be his for attending the litigation.
    <c A plaintiff may properly compromise his cause of action with the defendant and the defendant will not be bound to inquire whether the plaintiff has paid his attorney.” La Framboise v. Grow, 56 Ill. 202.
    It is the duty of persons to give notice of any secret liens. Nichols v. Pool, 89 Ill. 495.
    Mr. A. E. Harding, for appellee.
    To constitute a valid assignment in equity, of a debt or other chose in action, no particular form of words is necessary. Any words are sufficient that show the intention of transferring the chose in action to the assignee for a valuable consideration. Thompson v. Spies, 13 Sim. 469; Chown v. Baylis, 31 Beav. 351; Row v. Dawson, 1 Ves. 331; Pass v. McCrea, 36 Miss. 143; Kimball v. Donald, 20 Mo. 577; Garnsey v. Gardner, 49 Me. 167; Lannon v. Smith, 7 Gray, 150; Jones v. Witter, 13 Mass. 304; Grover v. Grover, 24 Pick. 201.
    An assignment of a part of a claim is good in equity. Exchange Bank v. McLoon, 73 Maine, 498 ; Daniels v. Meinhard, 53 Geo. 359 ; Risley v. Phœnix Bank, 83 N. Y. 318.
    Assignments of dioses in action, possibilities, expectancies and things not in esse, will be 2irotected and enforced in equity. The assignee is regarded as the true owner of the chose in action. Thalheimer v. Brinkerhoff, 20 Johns. 380 ; Wright v. Wright, 1 Ves. 411 ; Mandeville v. Welch, 5 Wheat. 283 ; Bacon v. Benham, 33 N. J. Eq. 614; Trull v. Eastman, 3 Met. 121; Kountz v. Kirkpatrick, 72 Pa. St. 376.

      It is claimed, however, that appellant is protected, because he bought the judgment without notice of any previous transfer, and is therefore a bona fide purchaser. The rule as to notice established by authority applies to the debtor only.
    If he pay a claim to the assignor without notice of the assignment, he will be protected. Hence the assignee must notify him if he desires any benefit from such assignment. Campbell v. Day, 16 Vt. 358; Loomis v. Loomis, 26 Vt. 201; Noble v. Thompson Oil Co., 79 Pa. St. 354; Heemans v. Ellsworth, 64 N. Y. 159; Dodd v. Brott, 1 Minn. 270.
    Or if lie would protect himself from the effect of a garnishment against his assignors. Carr v. Waugh, 28 Ill. 418; Hodson v. McConnel, 12 Ill. 170; Morris et al. v. Cheney, 51 Ill. 451.
    This rule as to notice does not apply as between two different assignees of the same chose in action. The rule at law as well as in equity, in a conflict of equitable claims, is qui prior est tempore, potior est jure. Muir v. Schenck & Robinson, 3 Hill. 228.
    This doctrine is fully sustained by the cases of Bush v. Lathrop, 22 N. Y. 535 ; Shaffer v. Reilly, 50 N. Y. 61; Davis v. Austin, 1 Ves. Jr. Ch. 247.
   Lacey, P. J.

Wm. Hawk recovered a judgment in the Livingston County Circuit Court against the .Wabash, St. Louis and Pacific Railway Company, from which the defendant prosecuted an appeal to the Appellate Court, where the judgment was affirmed. From the Appellate Court the railroad company prosecuted its further appeal to the Supreme Court. While the cause was pending in the last named court and undetermined, the plaintiff, Hawk, sold and assigned in writing the said judgment to James O’Conner'for a consideration of §275. The date of this assignment was May 16,1887, and the said judgment of the Appellate Court was affirmed by the Supreme Court on the l,7tli of the following June. It appears from the record that the appellant, O’Conner, had no actual notice of any interest of the appellee, Ament, in said judgment.

The appellee’s claim originated in the following manner: The said Hawk had a cause of action against the said railroad company for damages accruing for personal injuries he had received while acting as an employe of the company, and being desirous of prosecuting the case for the recovery of his damages he entered into a contract with the appellee, Ament, ■who was an attorney at law, to give him one-half of whatever judgment might be recovered in consideration that the latter would prosecute the case to final judgment. The appellee fulfilled his part of the contract and recovered judgment in the Livingston County Circuit Court for the sum of §1,900 and costs of suit, at its January term, 1884, with the result of the different appeals and decisions as above mentioned. In addition to this half interest appellee, after the case was appealed to the Supreme Court, was promised by Hawk to be reimbursed out of the judgment for all money appellee should advance in said court. About January, 1888, the railroad company paid tlie amount of the judgment and interest, amounting to §2,349.66, to the clerk of the Circuit Court.

At the January term, 1888, of the said court, appellant made his motion asking the court to direct the payment of the amount of the said judgment now in the hands of the clerk to him or his attorney, and the appellee made his cross-motion for an order on the clerk to pay over to him the sum of §1,417.25, as belonging to him. The court sustained the cross-motion of appellee in part and ordered the clerk to pay over to him the sum of §1,174.83, or one-half of the judgment collected, and the balance to the appellant. From this order this appeal is taken by James O’Conner. The assignment to O’Conner was recorded in the miscellaneous records of the circuit clerk’s office of the county. There are two questions presented here for our consideration: 1. Assuming that appellant was an innocent purchaser of the judgment without notice, are his equities superior to those of the appellee?

2. Tinder the circumstances surrounding the assignment, should appellant be held to notice of appellee’s claim? In the first place we think there can be little doubt that an attorney may, by agreement with the client, acquire an equitable lien as against him in the judgment recovered, or the subject-matter of the litigation and proceeds thereof for his fees and disbursements in the case. This doctrine was fully recognized in Smith v. Young et al., 62 Ill. 210. See also Patton v. Wilson, 34 Pa. St. 299. And in the latter case it is expressly held that the attorney, in respect to his fee so contracted, will be protected against an attaching creditor of the judgment creditor even when attached without notice. The statute also recognizes an attorney’s lien for his fees in cases where mutual judgments are attempted to be set off on mutual executions in the hands of the sheriff. See Exception 5 to Secs. 58 and 60, Chap. 77, R. S. The agreement between appellee and Hawk that the former should have one-half of the judgment to be recovered amounted to an-equitable assignment. Patton v. Wilson, supra.

The question now remains, is the lien of appellee on the judgment created by contract defeated by the subsequent assignment of the judgment to appellant by Hawk, without notice to the appellant of the lien of the appellee, if such was the case.

The question presented here has never been definitely settled by any adjudication in this State. And we have examined the question with much interest and care. It has been held by our Supreme Court that at common law, “an attorney has no lien upon a judgment for his fees in the litigation resulting in its recovery.” Nichols et al. v. Pool et al., 89 Ill. 491; Forsythe v. Beveridge, 52 Ill. 268. But in the case under consideration it will be seen the lien does not arise as a matter of law out of the mere fact of the existence of the relation of client and attorney and the performance of the legal services, but arises out of an express contract and equitable assignment. Hor is the decision in the case of Nichols v. Pool, supra, in any way at variance with the doctrine that a lien like this may be created by contract, for in that case the case was decided against the lien claimed by the attorneys on the ground of estoppel in pais. We think the decided weight of authority is in favor of the doctrine that the assignee of a chose in action only takes the same equities that the assignor had, and this rule applies to third parties who acquire rights to the thing assigned, before the assignment of which the last assignee may not have notice. For some of the cases holding this doctrine we refer to Bush v. Lathrop, 22 N. Y. 535; Schaffer v. Rukey, 50 N. Y. 61; Davis v. Austin, 1 Ves. Jr. 247; Carr v. Waugh, 28 Ill. 418; Morris v. Cheney, 51 Ill. 451. In the last case here cited it is intimated, though not a part of the decision, that the first assignor must give notice in order to protect his rights. This is in the nature of dictum. We can not regard it as deciding the point and overruling the case of Carr v. Waugh, supra, where it was held in a garnishee proceeding, a debt due the garnisheed party being attached, that a prior equitable assignee of the chose should be protected. -

As to the other point, we are of the opinion that the appellant ought to be held to notice of the appellee’s claim on the judgment. The judgment had been upheld by the Circuit and Appellate Courts, and the presumption would be that it would also be sustained by the Supreme Court, yet the appellant purchased it for about twelve per cent, of the amount due on it. This of itself, it would seem, ought to have put him on inquiry; but in addition it appears that his suspicions were so far aroused as to cause him to exact an affidavit from the judgment creditor, that the judgment had never been assigned, and he also inquired of the clerk as to whether any assignment was of record. But he strangely failed to inquire of the plaintiff’s attorney, the person of all others who would have been most likely to know all about it. If he had inquired of him he would have been informed at once of his rights in the matter.

Having been once put on inquiry, the appellant should have pursued it till he had made all reasonable effort to ascertain if any one had any claim on the judgment, and such inquiries could not reasonably stop short of making inquiry of the attorney of Hawk, the appellee. Perceiving no error in the record, the j udgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Lacey, P. J.

license: Public Domain

text:
    John Allison v. J. N. Perry et al.

      Partnership to Deal in Coal Lands — Dissolution—Bill for Accounting —Statute of Frauds — Evidence.
    1. Upon a bill filed by a partner against his co-partners for an accounting and for other relief, it is held: That the contention of the complainant that the defendants bad agreed that certain lands controlled by him should be taken in as part of the assets of the firm which was formed for the purpose of dealing in coal lands, is unsupported by the evidence.
    2. A parol contract of partnership to deal in lands, is not within the statute of frauds.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Ogle County; the Hon. William Bbown, Judge, presiding.
    On February 26, 1885, John Allison filed in the Circuit Court of Ogle County his bill of complaint against I. H. Perry and M. D. Hathaway, setting forth, amongst other things, in substance, the purchase of what was known as the O. J. Booth lands, in partnership between said John Allison, I. H. Perry and IT. D. Hathaway, in equal one-third shares; and also charging that said Perry then promised to take into the partnership what were then known as the Royal lands, at $55 per acre, or as much thereof as said Allison might be able to perfect title to, which, the bill says, was estimated at somewhat over one hundred acres; charging, also, the making and renewing to Perry and Hathaway of his notes for a portion of his share of the purchase price of the Booth lands; that he, Allison, had taken title to the Royal lands in the name of his son, W. S. Allison; and that since February 28, 1888, he has been ready, willing and able to convey said Royal lands, and that Perry and Hathaway refuse to accept the same.

      The bill prays an accounting between the parties; that Perry and Hathaway pay to him what may be found due him from them, or either of them; and that said notes be canceled and given up, and for general relief.
    April 22, 1885, Perry and Hathaway filed their answer to said bill, admitting and averring the partnership in the purchase of the O. J. Booth land; and also averring the purchase for the partnership of about three and one-half acres of land known as the Waters land; but denying that defendants ever, at any time, promised or agreed to purchase or take into the partnership the Boyal lands, so called, or any part of the same; and also stating and charging the partnership dealings between the parties, and averring the making of his notes by said John Allison for his one-third of the first and second payments on the Booth contract, and the making of new notes for the principal and interest of the notes so made upon said payments, on or about January 8 or 9,1883; one of said notes for §5,000, at six months, dated January 8, 1883, with interest at seven per cent, the other for §301.31, at one day, dated January 9, 1883, with interest at seven per cent, and the non-payment thereof.
    April 22, 1885, at the time of filing their answer, said Perry and Hathaway filed in said cause their cross-bill against said John Allison, therein charging the general dealings of the partnership and the property and assets by it owned, and praying for a full accounting of all partnership advances, receipts and expenses, and that the partnership might be dissolved, its property and assets sold, and the proceeds applied to the payment of liabilities and adjustment of accounts between the copartners.
    On May 7,1885, John Allison filed 1ns answer to the cross-bill, denying that any such agreement was made on or about February 14, 1882, as set up in the cross-bill, and denying that any copartnership was made except as stated and set forth in 1ns original bill, and denying that the Booth contract was assigned to, and deed of the land therein described taken in the name of, I. FT. Perry at his request; and admitting that said notes were unpaid, for the reason alleged in his original bill.

      Pursuant to notice, on August 7, 1886, John Allison filed an amendment to his answer to the cross-bill, claiming the benefit and protection of the statute of frauds and perjuries against claims set up in the cross-bill.
    On December 9, 1885, Perry and Hathaway amended their answer to the original bill, claiming the benefit and protection of the statute of frauds and perjuries against the claim or alleged agreement of the copartnership to take any other lands than the O. J. Booth and Waters lands.
    Peplications were filed to the respective answers, and the cause, ■ by agreement of parties, referred to the master in chancery of said Ogle county, requiring him to take proofs and state an account between the parties.
    A very large mass of testimony was submitted to the master, and on January 11, 1887, he made and filed in said court his report, finding that the partnership only embraced the O. J. Booth and Waters lands, and stating an account between the parties up to December 6, 1886.
    Exceptions to the master’s report were filed before him by the complainant and by the respective defendants, which were overruled by the master and the exceptions renewed before the court.
    Upon the hearing before the court the exceptions of the respective parties were overruled, and the master’s report as made, confirmed, and the decree appealed from, entered.
    Messrs. S. C. Stotjgh and J. 0. Shyster, for appellant.
    Messrs. William Lathrop and M. D. Hathaway, for appellees.
   Lacey, P. J.

The main, and perhaps the only question in this case as raised by the pleadings or controverted by the parties» is whether, at the formation of the partnership, the so-called Boyal lands of Mr. Allison, or any part thereof, were to be taken in as a part of the assets of the firm, or whether any valid agreement was made to take them in or to form a partnership without taking them in. The evidence taken before the master and preserved in the record is quite voluminous and much of it irrelevant, and we have examined it with the care which the importance of the case deserves, and have arrived at the conclusion that the appellant has failed to make out his claim. "We shall not take the trouble to go over the evidence in detail, as it would consume much time and is unnecessary. The agreement which appellant Allison claims, by which his Royal lands of one hundred acres were to be taken into the firm at fifty-five dollars per acre, was entered into and consummated about February 14, 1882, and was negotiated between him and appellee Perry,the latter, as appellantclaims, acting in behalf of Hathaway and himself.

We think, aside from the other evidence in the case, that appellant’s own letters negative any such understanding as is claimed by him to take into the partnership the Royal lands.

In his first letter addressed to appellee Perry, dated Gardner, January 9, 1883, nearly one year after the formation of the partnership, in which letter was inclosed his renewal notes for his interest in the firm, he says: “I hope you and Hr. Hathaway will take in our Royal land, and if you will it will help me out, and I am sure it is as good coal land as any of it, and, as well as some small pieces of the Royal lands, is surrounded by the Booth land, and is clear enough and will not lessen the value of the Booth land; then if you could fix it so I could on’v own one-fourth or one-sixth, 1 could get along with it. Please consider this.”

Then again, Hay 30, 1883, in another letter directed to appellees, he says: “Gents: I wish you would do one of two things for me — either take my Royal lands or let me out as a partner with yon on the Booth land. I am not in shape to pay any part unless you take in my land, and to pay interest will only make it worse for me; if there was no coal there I should not have asked you men to do either; think of this and let me know.”

This is not the language of a man who already had an existing contract with appellees to take in this land, made a year before. If such a contract existed he would have demanded its fulfillment instead of asking that the land be taken in as a matter of favor. The disclosure made by these letters entirely harmonizes with the evidence of appellees and contradicts his own testimony. The explanation given by Allison of the writing of the letters, that he did it at the instance of Perry to induce Hathaway to take in the lands, is not satisfactory.

The fact that the title of the lands of the firm were held by appellant in his own name, does not render the partnership agreement, which was in parol, obnoxious to the statute of Hands. Wallace v. Carpenter, 85 Ill. 590; Chester et al. v. Dickinson, 54 N. Y. 1; Yoak v. Clemens, 41 Ia. 95. Although an optional contract for the purchase of the partnership lands was made prior to the formation of the partnership, yet the title was acquired after such formation and for the benefit of the firm. The land was paid for on account of the firm.

The objection to the improper introduction of evidence on part of appellees is not of anyforce. It matters not whatillegal evidence is introduced on a trial in equity. The' court will consider only such as is competent, and we find abundance of evidence aside from the portion objected to, to support the decree.

The master, in allowing Allison seven per cent, interest on the sums paid out by him, did not err. This was correctly found from the bill and answer. The allowance to Hathaway of §81.38 and to Perry §96.75 for personal expenses for attention to business of the firm is not erroneous. The allowance is justified by the evidence.

The claim is set up in appellant’s reply brief that there was no partnership by the pleadings and evidence. We are satisfied that the partnership embraced the Booth and Waters lands alone.

The point made by appellant, that the decree does not provide for the collection of the notes for rent, one note for §500 due October 1, 1885, and one for §500 January 1,1886, as firm assets, is not well taken. It does so provide. Bent was only reported by the master as collected to December 1,1886. The above notes were not then collected. The decree plainly, in its findings and directions, mentions and provides for such collection for the benefit of the firm. It was not error to exclude the personal account of Perry and appellant for the accounting. The decree is therefore affirmed.

Decree affirmed.


author: Upton, J.

text:
    National Bank of Pontiac v. James Langan.

      Bailments — Public Warehousemen — Deposit of Corn — Levy—Trover.
    1. Upon a deposit of grain in a public warehouse in this State, to be mixed with the grain of other persons, the depositor becomes owner of an equal quantity of grain of the same kind and quality as that deposited, the transaction being a bailment and not a sale.
    2. Grain so deposited is not subject to levy under execution against the warehouseman, and the owner may maintain an action for the conversion thereof when it has been sold under such execution.
    3. One who is engaged in storing grain for a compensation in an elevator and its appurtenances, is a public warehouseman under the laws of this State.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Livingston County; the Hon. lí. J. Pillsbuey; Judge, presiding.
    Messrs. Strawn & Patton, for appellant.
    It is a general rule that where it is understood between the contracting parties that the goods delivered are to be mixed with like goods of the party receiving the goods, the transaction is held to he a sale and not a bailment. Carlisle v. Wallace, 12 Ind. 252; Smith v. Clark, 21 Wend. 83.
    And the same is held of a deposit of grain with a warehouseman, with the understanding that, when the depositor desires to sell, the warehouseman is to pay him the highest price, or return a like quantity and quality. Johnson v. Browne, 37 Iowa, 200; Rahilly v. Wilson, 3 Dill. (C. C.) 420; Chase v. Washburne, 1 Ohio St. 244; Butterfield v. Lathrop, 21 Pa. St. 225.
    See also to the sainé effect the following cases: Reed v. Abbey, 2 N. Y. Sup. Ct. 380; Bates v. Coster, 3 N. Y. Sup. Ct. 580; S. C., 1 Hun, 400; Jenkins v. Eichelberger, 4 Watts, 121; Pritchett v. Cook, 62 Pa. St. 193; Herrick v. Carter, 56 Barb. 41.
    Where the identical thing delivered is to be restored, although in altered form, the contract is one of bailment and the title to the property is not changed; but where there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return and the title of the property is changed; it is a sale. Mallory v. Willis, 4 N. Y. 76; Moore v. Holland, 39 Me. 307.
    It is held that trover does not lie for property the plaintiff has purposely so intermingled with other similar property of the defendant that it can not be distinguished or separated from the common mass; but in such cases the whole mass becomes the property of the person with whose goods it was so intermingled.
    In several cases in Illinois the foregoing doctrines are applied to cases of grain delivered in warehouses under contracts and circumstances similar to the case at bar. Lonergan v. Stewart, 55 Ill. 44; Richardson v. Olmstead, 74 Ill. 213; Bailey v. Bensley, 87 Ill. 556.
    As to the common law rule in grain transactions involving the facts and circumstances of the ease at bar, in the country at large, there are two currents of authority.
    Where the grain is stored in an elevator with the understanding between the parties that it is tobo mingled with other grain, and it is not contemplated that the keeper of the elevator shall return the identical grain stored, but only that he shall return an equal amount of grain of the same kind and grade, substantially as in the case at bar, the following cases hold that the transaction is a sale: South Australian Ins. Co. v. Randall, L. R. 3 C. C. 101; Chase v. Washburne, 1 Ohio St. 244; Lonergan v. Stewart, 55 Ill. 44; Richardson et al. v. Olmstead, 74 Ill. 213; Bailey v. Bensley, 87 Ill. 556; Johnson v. Beaver, 37 Iowa, 200; Nelson v. Brown, 44 Iowa, 445; Carlisle v. Wallace, 12 Ind. 252; Rahilly v. Wilson, 3 Dill. (W. S. C. C.) 420.
    The following cases, on the contrary, held the transaction to amount to a bailment: Sexton v. Graham, 53 Iowa, 181; Nelson v. Brown, 53 Iowa, 555; Ledyard v. Hibbard, 48 Mich. 421; Andrews v. Richmond, 34 Hun, 20; 6 Am. Law Rev. 450.
    Kent conducted his warehouse precisely as did Stewart and Richardson & Co., prior to the statute, and precisely as have all country warehouses or elevators been conducted both before and since the statute, and there is no reason why a rule which is purely statutory in Illinois should be forced upon these parties who did not deal under the statute or in contemplation of it.
    Messrs. MoIldutf & Torrance, for appellee.
   Upton, J.

Lester E. Kent, in the fall and winter of 1S82 and the spring following, was engaged in business as a grain dealer and warehouseman, and as such bought, stored and shipped grain, among other places, at Nevada, in Livingston County, where he had a grain elevator, warehouse and two corn cribs.

His principal business was the purchase and sale of grain on his own account, but when offered at his elevator or storehouse he received grain, including corn in the ear, in store for a compensation.

Attached to or near said grain elevator and warehouse were the two cribs, at and in which was received and stored for compensation, corn in the ear. The grain in the elevator or warehouse and the corn in these cribs purchased by Kent, and that which was received by him in store for a compensation, were not kept separate, but were put as unloaded into common bins or cribs, from which he would shell and ship to market as he might desire, supplying the amount of stored grain shipped, by receipts purchased on in store from other parties.

At various times during the winter of 1882, and the spring of 1883, there was delivered at such elevator and warehouse belonging to appellee eleven hundred and forty-two bushels and twenty-five pounds of corn in the ear, after the delivery of which, Kent, by bis agent, gave to appellee a receipt, of which the following is a copy:

“ Nevada, Ill., Feb. 8, 1883.

“Beceived of James Langan, eleven hundred and forty-two bushels and twenty-five pounds of ear corn in my elevator.

Bee. it as rejected, and I agree to pay him any time for any portion said Langan wishes to sell of it, highest ¡Drice I am paying for such grade, and I also agree to keep it in my elevator for him ninety days free of storage; after that I will charge half a cent per bushel per month for storage.

. “L. E. Bert,

“ Per Biley.”

The corn mentioned in this receipt had, before the execu- . tion and delivery thereof, in fact been shelled, shipped and sold by Kent, and other corn purchased and pat in place thereof.

On the 12th day of May, 1883, the National Bank of Pontiac caused an execution to be issued upon a judgment rendered in the Circuit Court of Livingston county, in its favor, against Kent, for about the sum of $4,785, and placed the same in the sheriff’s hands the same day to execute.

On the 14th day of May, Langan, hearing that Kent- had failed' to put a notice in writing on said corn crib (then containing 500 or 600 bushels of corn in the ear), posted a notice that he claimed the corn therein, and on the same day, Morrow, the president of the bank, and acting for it, also posted a notice on said crib that the bank claimed the corn, and he at the same time placed one Biley in charge thereof, as custodian for the bank.

We think Langan posted his notice first in point of time, although the evidence upon that point is not so full as might be desired, but we do not consider this material in the view we take of the case.

On the 16th of May the sheriff, by virtue of that execution. actually levied on the corn in the crib, and in due course sold it at sheriff’s sale. The bank purchased it, and applied the proceeds in part satisfaction of its judgment against Kent, claiming the corn as belonging to Kent.

Appellee made demand of Kent, Morrow and the bank for the corn, while in possession of the sheriff under the execution and levy thereon.

Upon being refused the property he brought suit in trover in the Circuit Court of Livingston county, against Kent and Morrow and the hank jointly, for its conversion, and upon hearing in the Circuit Court obtained a judgment against all said parties defendant, which upon appeal to this court was reversed and remanded to the Circuit Court for want of evidence of a joint conversion by all the defendants. National Bank of Pontiac v. Langan, 16 Ill. App. 505.

Upon which remand appellee, in the court below, dismissed the suit as to Morrow and Kent, and upon leave of court the pleadings were amended to conform to such change of parties, issues were joined, jury waived and canse submitted to the court for trial, which, after hearing the evidence, gave judgment against the appellant in the sum of 8215 and costs, to reverse which the cause is again before this court on appeal and errors are assigned upon the record.

In the exhaustive argument of the learned counsel for appellant our attention is called, first, to what is termed an assumption of the court below, “ that Kent was in the business of receiving grain under the warehouse law,” and it becomes important to determine under the evidence in the case whether Kent was or was not in law or fact, in the receipt of the corn in question, engaged in business under the warehouse act.

Article XIII, title, “ Warehouses,” of the Constitution of 1871, Sec. 1, declares that, “ All elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses.”

This record discloses the fact, uncontradicted and undisputed, that Kent controlled, managed and occupied this elevator or storehouse, with corn cribs attached and adjacent thereto, at the place and time in question, and stored therein, for a compensation charged for such storage, corn on the cob belonging to the appellee. The receipt offered and in evidence shows that fact. Kent swears to it positively, and no word or circumstance in evidence in the case, as shown by the record, contradicts it.

We are not aware whether the receipt in question is in the form adopted and put out by those acting and conducting their business under the warehouse law, nor do we deem that material to this inquiry; but the substance of the transaction rendered by the receipt is, to our minds, that Kent was at that time doing business in an elevator and its appurtenances where grain or other property was stored for a compensation, and, as such, was under the organic law of the State a public -warehouseman, as to the corn in question in this suit, and doing business as such.

The question now presented is, to whom did the corn in question, so stored in such public warehouse, belong? In other words, who was the owner thereof at the time of such levy of appellant’s execution thereon?

We answer, with this record before us, that it Avas either the property of the appellee, Langan, or that of Lester E. Kent. If the latter, it was liable to appellant’s execution and the judgment beloAv should be reversed. If to the former, that judgment should and must be affirmed.

It is contended on the part of appellant, that, Avhere grain is stored in an elevator or Avarehouse with the understanding, knoAvledge or consent between the parties concerned thoreAvitli that it is to be commingled with other grain of like kind and quality, and it is not contemplated that the keeper of the eleAuitor, or warehouseman, shall return the identical grain stored, but that he shall only return an equal amount of grain of the same kind and. grade substantially, as in the case at bar, such transaction constitutes a sale of the grain so stored to such warehouseman. To sustain that view we are cited to the folloAving cases in this State: Lonergan v. Stewart, 55 Ill. 44; Richardson v. Olmstead, 74 Ill. 213; Bailey v. Bensley, 87 Ill. 556.

It Avill be noticed that the first íavo cases cited above, viz., the 55th and 74th Ill., were determined Avithout reference to the organic act above referred to, and the legislative enactment of 1871 entitled “ Warehouses,” and the subject-matter in controversy in those cases arose and Avas decided before the adoption of the Constitution of 1870, or the enactment of the General Assembly in furtherance thereof, and as a consequence could not be regarded as authority, in view of such ¡Drovisions or enactments or in contradiction thereof.

The case of Bailey v. Bensley, supra, was determined, and the subject-matter thereof arose or accrued, in 1873, but, in our judgment, is not in point for the appellant.

In the subsequent case of German National Bank v. Meadowcraft, 95 Ill. 130, the Supreme Court say : “ In that case (Bailey v. Bensley) the questions involved were between the commission merchants and their consignor. He had shipped grain to them to be sold when he should so order. When they sued him for a balance for advances, commissions and charges paid for storage, one of the objections raised by him was that, on receiving receipts for grain he had consigned to them with directions to hold it, they had sold and transferred the warehouse receipts given when his grain went into store, and that when he ordered them to make sales they furnished and sold other receipts representing the same quantity and grade of grain as he had stored, and for which the receipts had been given. But it was held that this, being according to usage on the Board of Trade, was unobjectionable.”

“Here, the court was not discussing what legal right the holder of the receipt for the grain has, but what claim the consignor has on his consignee, to whom the receipt was given, and which had never been delivered to the consignor, so as to vest title in him of any specific property or any number of bushels of the entire mass with which it was mingled. Had the consignee returned the receipt to the warehouseman and demanded a delivery of the grain, the latter could not have been heard to say the consignee was not the owner of that number of bushels of grain to be taken and separated from the great bulk of grain of the same grade. He would not have been entitled to the very same grain he stored or placed in the warehouse, but to other similar grain. So it would have been had the consignee given the receipt to the consignor, and he had made the tender and demanded the grain for which the receipts called.” This case does not impinge the rule that, when the owner of grain consents that his shall be commingled with that of another, he can not recover for its conversion.

By judicial determination, therefore, the case of Bailey y. Bensley can have no application-in appellant’s favor in the case at bar, nor in support of his theory. On the other hand, as subsequently construed, as we have shown, it is an authority that when, grain was commingled, as in the case at bar, as between the warehouseman and the owner of the grain so stored, it was but a bailment and not a sale.

It is evident that in the cases cited by appellant as sustaining his theory of a bailment the test was solely one of identity under the common law rule, which was, that when the owner parts with the means of identifying his property or controlling it, the person to whom it is delivered instead of being a bailee, becomes a debtor. It was upon that principle and in consonance with that rule that the cases cited by appellant were determined. In the case at bar, the organic law and the statute in furtherance of its provisions have removed that test and declared, in effect, that such a mixture by consent in a public warehouse in this State shall not deprive the owner of the grain of his legal title thereto, or what is the same tiling^ to a like quantity of the same in bind and quality stored.

But the precise question we regard as settled in this State in the cases of Meadowcraft v. German National Bank, 95 Ill. 124, and Canadian Bank v. McCrea, 106 Ill. 281. It is admitted by appellant to have been expressly determined under the act of 1871, passed to give effect to article 13 of the Constitution, supra, that, in a deposit of grain in a public warehouse in this State to be mixed with the grain of other persons under the warehouse act, such depositor becomes the owner of an equal quantity of grain of the same kind and quality as that deposited, and that the title to such deposited grain does not pass to the warehouseman; that, in short, it is a bailment only and not a sale.

Those cases are the latest Adjudication of the court of last resort in this State upon that subject, and we are not at liberty to disregard them. They further hóld that, after demand made and on refusal, to surrender the same, and the payment or offer to pay charges for storage thereof, an action may be maintained for the conversion thereof, by such consignee, as the owner.

This settles the question of the ownership of the corn in controversy, as between the warehouseman, Kent, and the appellee, Langan, in favor of-appellee. As between them it was Langan’s corn, and as such the appellant had no authority to levy upon or sell the same, and must, having done so, respond in damages for the value of the corn. Schlinder et al. v. Westown et al., 9 Ind. 395; Sexton v. Graham, 53 Iowa, 181; Rice v. Dixon, 97 Ind. 97; Rotherburg v. Dixon, 97 Ind. 106; Young v. Miles, 23 Wis. 643; Cushing v. Breed, 14 Allen, 376; Broadwell v. Howard, 77 Ill. 305.

In the case last cited the court says: The fact that he keeps a public warehouse is of itself notice to the world that the property there stored is held for others; at least, sufficient to put parties interested on inquiry as to such right.” We have carefully examined the record in this case and the errors assigned thereon, and are of the opinion that in rendering judgment for appellee in the court below no error was committed, and that judgment is affirmed.

Judgment affirmed.


author: C. B. Smith, J.

text:
    Mary Hopkinson v. J. Blackburn Jones.

      Attorney and Client — Fees—Account Stated — Continuance.—Evidence— Instructions.
    1. The admission by a party against whom an affidavit for a continuance is made, that the absent witness will swear to' the material facts therein sta'ed. will not warrant the court in overruling the motion for a continuance, when it appears that the presence of the witness is necessary to a fair trial.
    2. Where an answer of a witness is but a mere conclusion and is not responsive to the question, it should be stricken out.

      8. Business transactions between an attorney and client may be investigated in a controversy between them, and the burden of proof is upon the former to show the justice1 of his demands.
    4. A statement of account between attorney and client is not conclusive ‘upon the client.
    5. Upon a suit brought by an attorney for the recovery of fees, instructions which, ignoring the relation of attorney and client, inform the jury that an account stated is final, are erroneous.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac G. Wilson, Judge, presiding.
    Messrs. Botseord & Wayne, for appellant.
    Messrs. D. B. Sherwood and Osoar Jones, for appellee.
   C. B. Smith, J.

This was an action in assumpsit brought by J. Blackburn Jones, appellee, against Mary Hopkinson, appellant, in the Kane county Circuit Court, to the.October term, 1886, and was tried at the October term, 1887.

The declaration contains three counts. The first one declares for services rendered • as an attorney; the second on an account stated between the parties for $3,038.59, and alleges further that, in consideration of the speedy payment, plaintiff would accept $2,888.59 in full settlement, provided said last sum was paid in sixty days from November 17, 1885, and that defendant neglected so to pay, and plaintiff therefore claims the full amount of $3,038.59 with interest from November 17, 1885. The third count seems to be the consolidated common counts. No evidence was offered under either the first or third counts. The trial was had under the second count.

The defendant pleaded the general issue aud a plea of set-off. Appellee is a lawyer living and practicing law in the city of Chicago. Appellant is the widow of Charles Hopkinson and lives in Kane county, Illinois. Charles Hopkinson in his lifetime had been one of the bondsmen of Postmaster McArthur, of the city of Chicago, who, after McArthur’s default, was sued on his bond with the other sureties.

This suit was pending, but untried, at the time of Hopkinson’s death, and the suit was abated as to him. Appellee had been of counsel for Hopkinson in his lifetime. Mr. and Mrs. Hopkinson had no children of their own, but they had adopted and raised a little girl named Lilly, up to womanhood, and she had taken their name. This girl grew to be a young woman and after Mr. Ho] lcinson’s death, this adopted daughter was the constant companion of appellant, and did all her writing, and was with her in all her business transactions, and advised with her and was, indeed, her adopted mother’s secretary, and was fully cognizant of all her mother’s affairs. She was afterward married to a Mr. Johnson.

Just before the trial was called, appellant entered a motion for a continuance on account of the absence of this daughter, Lilly, who was sick and unable to be in court, and in support of said motion read the following affidavit made by appellant:

“That affiant .can not safely proceed to the trial of said cause at the present time, on account of the absence of one Lilly Johnson, a resident of Chicago, Illinois, who is a materia] witness for the defense. That said witness is the adopted daughter of affiant, and was raised in her family and 2'emaincd a member thereof until her marriage, about one year since ; and she is the same person who is mentioned in the accompanying affidavit of Dr. Armstrong. That said witness, on August 31st, gave birth to a child, and for a time was seriously ill, but her gradual improvement has recently been checked by a relapse, which makes her appearance in court at the present time impossible. That said witness during the transactions in controversy in this case, was residing with affiant, Avas present at their occurrence and advising with affiant and participating in the2n, and is familiar therewith. That affiant has a good and meritorious defence to this action. That she expects and believes that she can prove by said witness that the sum of $5,000 mentioned in plaintiff’s bill of particula2,s ‘as fees agreed upon,’ is erroneous, and that the services of plaintiff we2-e not definitely agreed upon, but when rendered, to be paid for, for what they were reasonably worth. That, in the presence of said witness, plaintiff agreed to render said services upon a fair and reasonable consideration. That by said witness she will be able to prove the kind and nature of said services, so that other witnesses may be competent to speak of their value, and that by such proof she will be able to show that said services rendered by the plaintiff were not worth the one-half of §5,000. That said plaintiff on the trial will attempt to establish an express'contract, and that on that point there will be a conflict of testimony, and an attempt on the part of plaintiff to sustain an agreement to pay the amount shown in said bill of particulars. That said witness was present on an occasion referred to in some depositions taken by plaintiff when there was an attempt to make a settlement of the account bétween plaintiff and affiant, and that after some preliminary talk was had about said account, there suspiciously appeared in plaintiff’s office, persons who appeared to have dropped in as witnessess to this conversation, when affiant forbore to make in their presence any further conversation about her affairs. It is now claimed by two of these persons that certain admissions were made by affiant which were entered in a certain book which is to be produced as evidence thereof in- this case. Affiant expects and believes she can prove by said witness that no such statements, admissions or conversations were liad or made by affiant so recorded in said book, either in words or substance, nor was any such book present or written in when affiant was present.

“But affiant expects and believes she can, on the contrary, prove by said witness that on that occasion this affiant informed plaintiff that his said bill was exorbitant; that she did not owe the amount claimed; that such account was incorrect, and that proper credits had not been allowed her; that affiant never consented to or agreed to any balance thus shown. That she expects and believes she can and will show by said witness that on said occasion, when no persons were present except plaintiff, defendant and said witness, this account was examined) and that affiant claimed credit for the sum of §500, which does not appear in said bill of particulars, and that plaintiff then agreed that she should, on said account, have credit for that sum.

“Affiant further states that plaintiff once had in his hands, gas stock of this affiant of the face value of $500, which he disposed of without her knowledge or consent, and that he then also offered to allow the value of same to affiant. Affiant further expects and believes she can further prove' by said witness that on another occasion, at plaintiff’s office, when witness was present, and after the rendering of a bill to her showing due to him about $3,000, and after all services claimed for had been rendered, then allowed and admitted credits to affiant so as to reduce said account to $2,000. Affiant further states that by way of compromise and to avoid threatened litigation she consented to pay said $2,000 and borrowed a sum of money to pay it, but plaintiff would not accept it, and refused to allow said credits, and that this was the only agi eement or compromise made by affiant when said witness was present.

“Affiant further says that should plaintiff be a witness in his own behalf on the trial, affiant is advised that it will be important for her to have said witness in court, in matters of rebuttal to the testimony of plaintiff, as she was present at all the agreements and material transactions between plaintiff and defendant, and that the presence of said witness in court is material and necessary to her defense on said trial.

“That on most, if not all of said facts, there will be a contrariety of evidence, and affiant knows of no other witness, except herself, by whom she can prove said facts, so within the knowledge of said witness or of any of them. That said witness is not absent by the consent of affiant, but if the case be continued for the term she believes she can secure her attendance at the next term of this court, and that this continuance is not for delay.”

Affidavit of John B. Armstrong, states on oath, that he is a practicing physician of the city of Chicago, and the family physician of Mrs. Johnson; that on the 31st day of August last, she, after serious labor, gave birth to a child; that for a month she was confined to her bed; that she is now suffering from threatened abscess of the breast, rendering her absolutely untit to attend court, or to be subjected to any physical or mental excitement for six weeks to come; that he attended her through her confinement, and that she is now under his treatment.

The court held these affidavits sufficient to entitle the defendant to a continuance, and thereupon plaintiff elected to admit the affidavit, and the court then overruled the motion for continuance and required the defendant to go to trial, against her objection, to which ruling of the court she excepted. A trial was then had resulting in a verdict for the plaintiff for §3,216.86.

The court overruled a motion by defendant for a new tria] and rendered judgment on the verdict for the plaintiff. The defendant prayed an appeal and brings the record here for review, and assigns numerous errors committed against her on the trial.

The first error complained of is the action of the court in overruling her motion for a continuance after appellee had elected to admit the affidavit. We think this objection is well made. The affidavit which we have set out in full not only shows that ¡Mrs. Johnson was a very important witness, but it goes further and shows that her presence at the trial was as important to a fair and "just trial as was her mere testimony.

The affidavit stated her familiarity and intimate knowledge with all the business transactions and conversations had between her mother and appellee, out of which this controversy arose, and that she carried on the correspondence between them, and was present at the various times when plaintiff c'aimed that the defendant had admitted and promised to pay his claim. There can be no doubt that the presence of this witness to aid in giving her mother advice and assistance on the trial, and to meet with her testimony any new and unexpected phase of the case, was important to a fair trial.

The subsequent course and conduct of the trial fully justified the affidavit and demonstrated the necessity of ¡Mrs. Johnson’s presence. The admission by a party against whom an affidavit for a continuance is made, that the absent witness will swear to the material facts stated in the affidavit will not always warrant the court in overruling the motion for a continuance.

It sometimes occurs that the relations of the absent witness to the party desiring his evidence and attendance is such that his personal presence is as important to aid in the conduct of the trial as his evidence upon the issue involved. And when such personal presence of the witness is fairly shown to the court by proper affidavit to be reasonably and probably necessary to a fair trial and to prevent surprises, then, and in such cases the motion ought not to be overruled because the party may admit the affidavit.

The case before us we think fairly illustrates the necessity and propriety of .such rule. The facts to justify such a departure from the usual course, must rest in the sound legal discretion of the court, subject to review, however, for abuse of discretion.

It appears from the evidence that the claim of appellee is not for any services rendered appellant’s husband during his lifetime, but was wholly for services rendered appellant in the settlement of her husband’s estate. She testifies that prior to her husband’s death she knew but little of appellee, and had not much acquaintance with him, and that after her husband’s death she received a telegram from appellee, and that in response she went to Chicago to. see him, and that he was anxious to do her business, and that she gave it to him. This seems to have been the beginning of the relation of client and attorney between the parties, and it was begun at the solicitation of appellee. The evidence in this record discloses the fact that Mrs. Hopkinson was a woman little acquainted with business affairs and methods, and was largely dependent upon her attorney and her adopted daughter for advice and direction in her business affairs. The relationship of client and attorney covered a period of something near three years and was terminated in 1886, if not before, by the commencement of this suit.

During the progress of this employment and before the estate was settled up the plaintiff presented defendant with a bill for services amounting to something over $3,000 and the defendant offered to prove that he first proposed a lump charge of $5,000 which he, in fact, had in his account, but the court refused to allow the proof. The testimony in the case does not disclose what services the plaintiff rendered the defendant for which he demanded this large sum of money. The plaintiff rested 1ns case on proof of an account stated without attempting to' show what services he had rendered, nor what such services were worth.

The plaintiff claims that the settlement was made between himself and defendant, and the account stated at his office in Chicago on the 17tli day of November, 1885, and that the amount then agreed upon as due plaintiff was $3,038.59.

The plaintiff swears she promised to pay this amount, a part at a time. He had rendered her the bill in 1884, which she had kept ten months without paying any attention to it. Shortly before this alleged settlement was made plaintiff swears that he wrote her that he wanted a settlement; it was about time to close the estate in the County Court; that she had given notice to settle the estate on the 19th day of November, and that, unless the account was settled, he would do nothing further in the estate, in her business.

In response to this letter he swears that she and Lilly came to his office November 17th, and said she had come to settle the account. It appears that plaintiff’s office forms a sort of central room and doors lead from it into some two or three other offices occupied by other attorneys-who had intimate personal and business relations with plaintiff. They each had a private office opening into this common or central room. Henry T. Steele occupied one room. Bobert McCurdy another. Henry M. Price occupied another of these rooms, all opening into plaintiff’s office.

After defendant and her daughter, Lilly, had been in the office a short time talking about the settlement on the 17th day of November, and after they had discussed different items of the account plaintiff himself says: “ I am going to have a witness here and will speak to Steele, and have him come in, so he may know what is said and done. Lilly said she spoke to McCurdy to come in. , I then told Steele we had some difficulty, but had struck a balance of $3,038.59. She says she will be satisfied if I will allow her $150. I agreed to that and the amount will be that much less. She then said, ‘ What will you do if 1 can raise §2,000 right away?5 I said, ‘If you will raise it by January 1st, I will receipt the bill with pleasure..’ I then wrote what appears in the bill to that effect. She said she was satisfied with the bill, and after that our business relations continued, and she consulted me on business matters of her own.”

Henry T. Steele testified for plaintiff, that the plaintiff called him for a witness and that he was requested to take notice of what was said and done; that he was shown some figures that appear at the bottom of an exhibit, and that while plaintiff was admitting the §3,038.59, she was also insisting there must be a deduction of §150. “ Ho balance mentioned or struck.” “I took the - amount in price and date and put it down in diary or journal.”' “ I don’t remember that defendant made any reply.”

On cross-examination this witness swears he was formerly a partner of appellee’s, and that appellee has most of his chancery cases referred to him; that he can’t call to mind the conversation between the parties at the time. Only put down ‘‘Mrs. Hopkinson, in General Jones’ office, says, owes 83,038.69, less §150, and if paid before January 1st, 82,000 to be accepted.”

“ Probably defendant did not say what I have written; can not give her words. It was written in my office. I wrote it after I left plaintiff’s office.”

Bobert McCurdy testifies that on Hovember 17, 1885, he and plaintiff both had private offices opening in the same general room, and that he was present at what purported to bo a settlement between plaintiff and defendant. Plhintiff said there had been some dispute about the account, but he had now agreed on the amount due.

The amount was then stated by the plaintiff a little over §3,000. Defendant claimed a credit of §150 and plaintiff said he was willing to allow it. Can’t state substance'of anything the defendant said. Plaintiff said if §2,000 was paid by the holidays, then he was to accept that amount. Defendant made no answer to that proposition.

On cross-examination this witness says, at one time he had desk room in plaintiff’s office, and had more or less interest in his business matters. At the time of this meeting Steele was in plaintiff’s office, and plaintiff said he wanted us to he witnesses to the conversation that took place. The account had been agreed upon when I came in. I do not remember any particular words the defendant said; can’t state anything she said in words. McCurdy further swears that Steele made his memoranda in his hook in plaintiff’s office, near the east window, and that he looked over Steele’s shoulder to see that he made a proper memoranda. McCurdy further swears that on that occasion the defendant was somewhat agitated — don’t recollect whether she was weeping or not. He further said on cross-examination, “ I can’t give the language used. I can’t give the substance of what either party said.” The testimony of the plaintiff and these two witnesses, Steele and McCurdy, is all there was, offered by plaintiff as to what took place at the -time he claims the account was stated.

There were two or three witnesses testifying to the defendant going to plaintiff’s office on other occasions with an abstract, and saying she was going to borrow money to pay plaintiff.

The defendant testified that she lived on a farm near Elgin. “Am widow of Charles Hopkinson. After my husband’s death I got a telegram from plaintiff, and went to Chicago to see linn. He was anxious to do our business, and I gave it to him. He afterward sent me a bill, and I and Lilly went to his office. Saw Steele and McCurdy there. Ho one but plaintiff was there when we got there. He said he wanted his pay and would not close up the estate unless I gave him a note or something to secure his pay.

“There was considei’able said between us; I can not recollect; I was very indignant, but I told him I would pay him every cent I owed him. I was much agitated and can not remember all. I objected to his bill all the way through; that it was too large. I wanted to get the matter settled. The substance of the conversation was, that he would do no more until he got his money. He then called these gentlemen into the room and I said no more. After they came in I said, £ I will pay you every cent I owe yon,’ and then went out of the room. I was crying at the time, and was begging him to close up the estate and he would get his money.

“ There was then no memoranda written in Steele’s book, and no such conversation as.shown in Steele’s book. Mrs. Johnson (Lilly) was with me. The parties that plaintiff called in were there when I left. I never spoke to them. We never spoke about calling them in.”

The affidavit of Mrs. Johnson (Lilly) was then read in evidence on behalf of the defendant. She stated that she was at the plaintiff’s office with the defendant when a settlement was attempted, and that after some preliminary talk had been had between plaintiff and defendant about the account, certain Iversons surreptitiously appeared there who seemed to have come in as listeners to the conversation, and the defendant then forebore to make further conversation about her affairs, in their presence; that no such statements or admissions were made as stated in Steele’s and McCurdy’s depositions or recorded in a book, nor any memoranda made in her presence, and no such agreement as claimed was made; but the defendant then claimed the account was incorrect and did not confirm it.

The foregoing is all the material testimony in support of and against the settlement and account stated. The plaintiff and both his witnesses, McCurdy and Steele, swear that neither Steele nor McCurdy was in plaintiff’s office when the discussion and dispute about the account began.

McCurdy says the settlement was made before he got in; .Steele says substantially the same, and they both swear to what the plaintiff repeated over after they got there, as to what the agreement was, and while there is an attempt on their part to swear the defendant into acquiescence to what the plaintiff said about the settlement and its terms, they both utterly fail on cross-examination to repeat a single sentence or even the substance of anything the defendant said on that occasion, but give their conclusions against the objections of defendant. These witnesses do not agree with each other as to what occurred on that occasion.

McCurdy swears Steele made his memoranda in his book in plaintiff’s office at the window and that he stood by him and looked over his shoulder to see if he got it right. Steele says he did not make the memoranda there but made it in his own office after the parties had all gone. The conduct of the plaintiff in calling these lawyers from side rooms to be witnesses for him against this woman, his own client, in an attempted settlement, while the relation of client and attorney still existed, is open to severe and just criticism and can not meet with our approval. Mor does the conduct these two witnesses stand in any better light in their readiness to be witnesses against this woman under the circumstances, they knew she was his client, and they knew, or ought to have known, that his professional obligation to her was violated by the methods then adopted. If she was consenting and agreeing to the alleged settlement and approving the plaintiff’s account it would have been quite as easy to have her indorse such approval on the bill and sign it as to call in these lawyers to witness it, and have them write it in a book. Inasmuch as the plaintiff declined to open up his dealings with his client by a.proper declaration for that purpose, but chose to risk his case on an account stated, the burden of the proof was on him to show by a fair and clear preponderance of the evidence that such an account had been fairly and justly stated. We think the proof fails to establish that fact, under all the circumstances of the case, and that the verdict was therefore against the evidence.

The defendant also insists the court erred in the admission and rejection of testimony. We think the court erred in several instances in permitting witnesses, McCurdy and Steele, to state their conclusions instead of requiring them to state what was said.

Witness McCurdy was asked this question: “State whether or not defendant assented to the balance found due on that occasion, and if so in what way.”

Ans. “She did assent. I can not tell now from recollection whether it was by a nod of the head or by words but I know she assented.” Defendant objected to this answer'and moved to have it stricken out, which was refused by the court. The answer is but the conclusion of the witness and should not have gone to the jury. The question and answer were vital and important. Her assent could only be manifested by saying or doing something and the witness should have been required to say what she did or what she said.

Again McCurdy was asked: “Have you now stated all you can recollect she said on that occasion?/’

Ans. “ There was some conversation as to a compromise of this amount, as I understood it, before the then ensuing holidays, in which it was agreed that if $2,000 was paid in cash before the holidays that should close the account.” The defendant objected to this answer and moved to have it stricken out, but the court overruled the motion. This was error. The statement that the parties agreed to a settlement is a conclusion, and should not have been allowed. Again he was asked: “What did she say on that subject?” Ans. “She agreed to what the General said about the amount that was due, a little over $3,000.” The defendant objected to this answer and was overruled. The answer was but a conclusion and not responsive to the question, and ought to have been stricken out.

The witness Steele was asked the question: “Who called you in ? ” In addition to answering the question, he goes on at considerable length and tells what occurred in the office between the parties after he got in. In this answer he also states conclusions of what was said and done. The defendant objected to all the answer not responsive to the question, and asked to have it stricken out, but the court refused to do it. In this the court erred. Without noticing numerous other objections of this same class appearing in the record, where improper answers of witnesses were allowed to go to the jury against the defendant and against her objections, we will notice the error assigned in the refusal of the court to admit proper testimony offered by the defendant. The original account filed by the plaintiff, contained a “lump” charge of $5,000 as an agreed fee.

On the trial of the case, plaintiff and his witnesses have testified to what occurred, and what defendant said on the occasion of the alleged settlement in Hovember at plaintiff’s office.

When the defendant was on the witness stand testifying, and giving her version of what was said and done at the same time and place, she was asked this question: “Can you mention some of the facts in reference to the charges? do you remember the fact that thqre was anything said about a lump charge of §5,000?”

The plaintiff'objected, and the court sustained the objection. We are wholly unable to understand why this objection should have been sustained. It was competent and proper for several reasons, and it should have been allowed.

It was seriously prejudicial to the defendant to cut off the plaintiff’s explanation for' making a §5,000 charge without an item being stated, and then to offer to take §3,038.59, and then still further to offer to “ cheerfully ” receipt his bill for §2,000, if paid by the 1st of January.

The question asked of the defendant opened up a branch of the case which she was'refused the right to investigate, and that was as to the right of the defendant to go back of the alleged settlement and statement of the account (even conceding that such settlement and statement had been made), and look into the fairness and reasonableness of the charges made as they grew out of the original transaction. The court in the admission and rejection of the evidence as well as in the instructions given and refused, seems to have proceeded on the theory that a statement of account made between attorney and client, was conclusive upon the client. This may be the rule as among strangers where no relation of confidence or trust exists, and where neither has a right to look upon the other for protection against fraud or oppression, or undue advantage. But this rule, if it ever had any existence as between persons holding confidential, trust or dependent relations toward each other, seems to have been relaxed as to them.

The .defendant interposed the general issue, which was a denial of the whole of plaintiff’s claim, and put him upon its proof, and then filed a plea of set-off, which would entitle her to recover anything she could prove herself entitled to.

The case of Gruby v. Smith, 13 Ill. App. 43, seems to be in point, and is a case in many respects like the one at bar. The opinion of the court was delivered by that learned jurist, Judge McAllister. The suit in that case was brought by Smith, as attorney at law, before a justice, against Gruby, a tailor, to recover for legal services. Before the justice the plaintiff sought to recover on a quantum meruit theory. On appeal to the Circuit Court he changed his ground and sought to, and did, recover solely on the ground of an alleged account stated. In the opinion of the court Judge McAllister says: “It may be gathered from the record that the defendant sought to go into an investigation of the merits of some of the items charged by the plaintiff, but, on objection by the plaintiff, the evidence was excluded. Some of the items in plaintiff’s account, which was in evidence, seem to us to be excessive and extortionate, and we think great injustice has been done the defendant by the verdict and judgment.” In speaking of the failure of the plaintiff to make out his case by a preponderance of the evidence, the court further says that “ the fact that nothing of the kind (an account stated) was pretended on the trial before the justice, which occurred but a few days after the alleged accounting, and the not giving any testimony of it there, but springing it on the defendant for the first time on the trial in the Circuit Court, the circumstances under which it took place, the the witnesses happen to be conveniently present, and the manner in which they testify, all conspire to show this to have been an adroit device on the part of this attorney to collect of his client an excessive and extortionate bill.’"'

“ The fact that the relation of attorney and client subsisted between the parties at the time of this alleged assent to a grossly exorbitant bill, and promise to pay such balance, should have had an important if not controlling effect upon the question whether any such assent and promise were voluntarily given or made on the part of the defendant, and upon the point of permitting an investigation by him into the merits of the several items of the bill. But it- seems that relation was entirely ignored.”

In that case this instruction was given: “The jury are in. structed that in an action upon an account stated, the original form or evidence of the debt is immaterial, for the stating of the account changes the character of the cause of action and is in the nature of a new undertaking. The action is founded» not upon the original contract, but upon the promise to pay the balance ascertained; if the jury find from the evidence that there were accounts rendered by both parties to this suit, the one to the other, and a balance agreed upon in favor of the plaintiff, and a promise made by the defendant to pay the balance', then you must find for the plaintiff not exceeding the amount so agreed upon and promised.”

This instruction was held wrong and misleading: first, because it ingeniously told the jury that the original merits or extortionate character of plaintiff’s charges were entirely immaterial, and that such account was absolutely conclusive; and secondly, because, while purporting to give the jury all the elements necessary to a recovery, it wholly omits any reference to the relation of attorney and client, and whether the defendant was fully and fairly informed in respect to material facts. The parties not dealing upon a footing of equality, those matters should have been embraced. This case is in all material respects, in fact and law, like the one at bar. And the same rule was held in Dickinson v. Bradford, 59 Ala. 581.

In that case •the court use this language: “If they (attorneys) assume the relation and enter upon the duties, thereby inviting confidence and acquiring influence without stipulating the means of compensation, no subsequent agreement with the client can be supported unless it is satisfactorily shown that the compensation does not exceed a fair and just remuneration for the services which have been, and which it is, the duty of the attorney to render.”

Again in Jennings v. McConnell, 17 Ill. 148, the Supreme Court, Scates, C. J., use this language : “ In the relation of client and attorney or solicitor, there is that confidence reposed in the latter which gives rise to very strong influences over the actions, rights and interest of the former. Hence the law with a wise providence not only watches over all the transactions of parties in this relation, hut often interposes to declare transactions void, which between other persons would be good. And this is applicable to contracts and gifts generally, while the confidential relation continues, and is not confined to any particular property about which the attorney may have been employed. It is not required that the client should establish fraud or imposition; the onus of proof, upon showing the relation when the contract or gift was made, is upon the attorney to show fairness, adequacy and equity, and upon failure to make such proof, courts of equity treat the case as one of constructive fraud. The highest degree of good faith and fairness is expected and exacted.”

This and the two preceding cases both go the full extent of holding that the business transactions between an attorney and client may he investigated in a controversy between them; hut they go farther, and hold that the burden of proof is on the attorney to show the justice and fairness of his demands.

Under the authority of the cases above cited we think the defendant had the right, on the trial, to go back of the alleged settlement and investigate the character and justice of the plaintiff’s original charges for all services rendered under his employment and during the existence of the time covered by the relation of client and attorney, and show if she could, that they were exorbitant and unjust. Ho mere trick or device of pleading can deprive her of this right. If this large sum of money was honestly earned and justly due the plain tiff, he ought not obstruct the way to the fullest and fairest investigation of his dealings with his client.

We think the circumstances surrounding this transaction, from beginning to end, justify the wisdom of this rule. The defendant was a woman deprived of the assistance and counsel of her husband. The plaintiff had done or pretended to do some business for him in his lifetime. On the death of the husband, the plaintiff sought out the defendant, and was employed at his own request. After his bill had reached from §3,000 to So,000, the business is not yet done, and he presents a §5,000 lump charge, and demands payment or settlement, and notifies her that he will do nothing more with her business, nor proceed with it until his bill is settled. Already had the estate dragged more than a year beyond the legal period for settlement. The defendant is urging him to finish the work he was employed to do, and tells him when that is done she will pay him every cent she owes him.

Under these circumstances she was peculiarly in his power. She had already paid him a good deal of money. He understood all about her business, and he knew her necessity for the services of an attorney until her work was finished. It was utterly impracticable at that stage of the business, for her to discharge him and employ other counsel. He knew this and she knew it. He calls a halt to compel compliance with his demands knowing the advantage of his position and the necessities of his client. We think a settlement obtained under such circumstances between attorney and client entitled to but very little weight, and that the burden rests on the plaintiff to show its correctness and fairness.

Again the defendant assigns for error the giving of plaintiff’s instructions. The question involved in this assignment of error has already been considered in connection with the refusal of the court to allow the defendant to answer the question propounded to her. Under the rule laid down in Gruby v. Smith, supra, the instructions given for plaintiff were all erroneous.

First, because the legal effect of them was to tell the jury that the supposed statement of account was final and conclusive against the defendant.

Second, because all of the instructions ignored the relation of client and attorney, and did not correctly state the law as between client and attorney, as held in the cases above cited, and which we hold to be the law governing this “case. v

Lastly, the defendant assigns for error that the court erred in refusing to give her second and third instructions. We think the second instruction ought to have been given. It was asked under the defendant’s theory of the case, and under that theory it was correctly drawn. There was evidence in the record tending to support it. The last instruction was properly refused. It did not state a correct principle of law.

Upon the whole record we are satisfied that the defendant has not had a fair and impartial trial in conformity with the law, and for the errors herein stated the judgment is reversed and cause remanded.

Reversed and remcmdecl.


text:
    Hannah Wheeler, Impleaded, etc., v. Seth Gage.

      Chattel Mortgages — Foreclosure—Release of Homestead — Defective Aclcnow ledgment — R t a tutes.

    1. A strict compliance with both the substance and form of the statute in regard to the execution and acknowledgment of deeds and mortgages, is necessary to make the same effective to convey the homestead.
    2. In the case presented, it is held: That the court'has jurisdiction of the appeal under the certificate of the circuit judge; and that Sec. 76, Chap. 110, R S., has no application, the title to real estate being only incidentally involved.
    [Opinion filed December 8, 1888.]
    In error to the Circuit Court of Kankakee County; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Stephen B. Moore, for plaintiff in error.
    Inasmuch as the homestead estate can only be extinguished by a deed “ acknowledged in the same manner as conveyances of real estate are required to be acknowledged,” and inasmuch as this deed is not so acknowledged, it follows that this deed does not divest the homestead right.
    The homestead act is remedial in its nature, and must be so construed as to most effectually meet the benevolent object of the law. Deere v. Chapman, 25 Ill. 610.

      The homestead is a right which can not be taken from the wife and children in any other way than that prescribed in the act itself. Pardee v. Lindley, 31 Ill. 187.
    The release must be expressly made in the mode pointed out by the statute. Miller et al. v. Marckle, 27 Ill. 402; Kitchell v. Burgwin et al., 21 Ill. 45; Vanzant v. Vanzant, 23 Ill. 541.
    Mr. H. K. Wheeleb, for defendant in error.
    It will be found that each of these mortgages has the statutory requirements to make a good conveyance of a homestead. The precise words required by the st. tute are used.
    What does the phrase, “acknowledged in the same manner as conveyances of real estate are required to be acknowledged,” in Sec. 4, Chap. 52, refer to? Is it to be construed in connection with Sec. 28 of the 'conveyance act, or will it be governed by that portion of the conveyance act which relates solely to homesteads?
    These mortgages are conveyances of personal property, and do not purport to convey real estate. The chattel mortgage was made in conformity to the laws, and duly acknowledged as such, but as the homestead laws give a homestead in a leasehold estate, then the homestead interest must be conveyed and released as homestead interests are conveyed in real estate. In other words, a homestead where the parties own the real estate should be governed by the laws regulating conveyances of real estate. Where the property is chattels it should be conveyed according to the laws regulating conveyances of chattel property. This would be equally true of the acknowledgments. If this acknowledgment should have been made as contended for by counsel for plaintiff in error, then it would have been in violation of the statute in regard to chattel mortgages, and if it required a real estate acknowledgment, then there could be no valid conveyance made of the property.
    We insist Sec. 4 of Chap. 52, R. S., regulating the conveyance and acknowledgment of the homestead interest, relates to Secs. 12 and 28 of Cliap. 36, regulating conveyances, and should be construed in connection with those sections so as to, if possible, give full force to each. It has already been shown these conveyances are in harmony "with Sec. 12 so far as conveying the homestead interest. Sec. 27, which counsel claims governs this case, only purports to give a form of acknowl-, edgment that acknowledges a conveyance of the fee, but no form is given by that section for a release or waiver of the right of homestead. Clearly, then, Sec. 4 of Chap. 52, where the phrase, “acknowledged in the same manner as conveyances of real estate are required to be acknowledged,” is made use of, refers to Sec. 28 of Chap. 32, because Chap. 52 relates solely to exemptions. Sec. 4 purports to regulate the “release, waiver or conveyance” of the homestead interest. That being the object of the act, and no other object being under consideration, it must certainly have been the intention of the Legislature that the conveyance and release of the homestead interest slionld-be made as provided in the conveyance act relating to the conveyance and release of the right of homesteads.
    The phrase, “ acknowledged in the same manner as conveyances are required to be acknowledged,” refers, of course, to conveyances affecting the homestead, as that section relates only to homestead interests.
   C. B. Smith, J.

This was a bill in chancery to foreclose two chattel mortgages on a dwelling house and milliner’s store built on leased ground. The cause was heard on bill, answer and replication, and the evidence taken in the Kankakee Circuit Court, and the court granted a decree of foreclosure according to the prayer of the bill.

Appellant has sued out a writ of error, and asks to have the decree reversed for the errors assigned. The case is here under a certificate of the judge under Sec. 76 of the practice act of this State. The answer admits the making of the mortgage, but claims that the homestead was not released in the execution and acknowledgment of the mortgage, and claims a homestead in Hannah Wheeler, the wife of James Wheeler, who has died since making the mortgages. Whether the acknowledgments of the two chattel mortgages released the homestead is the only question presented to us by this record, and is the only question argued by counsel, except the question of jurisdiction of the court under the certificate of the judge.

The chattel mortgages are in the usual form and both cover the same property, viz.: the frame two-story building used as a millinery store and dwelling, situated on the north part of lot 1, block 43, in Momence. The acknowledgment to the first mortgage is as follows:

“ State of Illinois, 1 “Kankakee County, j s'

I, M. O. Clark, a justice of the peace in and for the town of Ganeer. in and for said county, do hereby certify that this mortgage was duly acknowledged before me by the above named James Wheeler and Hannah Wheeler, the mortgagors therein named, and entered by me this 27th day of May, A. D. 1882, including the release and waiver of the right of homestead.

“Witness my hand and seal.

“M. O. Clabe:, “Justice of the Peace.”

The acknowledgment to the second mortgage is in the following form, viz.:

“ State of Illinois, 1 “ Kankakee County, j ss"

I, M. O. Clark, a justice of the peace in the town of Ganeer in and for said county, do hereby certify that this mortgage was duly acknowledged before me by the above named James Wheeler and Hannah Wheeler, the mortgagors therein named, as their free act and deed, including the release and waiver of the right of homestead, and entered by me this 11th day of June, 1883.

“ M. O. Claek, “Justice of the Peace.”

In the body of both the chattel mortgages the right of homestead was expressly waived and released. It was conceded by appellee that appellant has a right of homestead in the premises described, unless it was properly released by the mortgagors, and he contends that the acknowledgment to both mortgages was sufficient under our conveyance and homestead acts to operate as a release of the homestead right. Appellant, on the contrary, insists that the acknowledgments were inoperative to release the homestead right.

The court below was of opinion that the homestead was released, and ' so decreed, and ordered the property sold without setting off the homestead. In this we think the court erred. Sec. 1, Oh. 52, E. S., gives a householder a homestead and provides that “such homestead and all right and title therein shall be exempt * * * from the laws of conveyance, * * * except as hereinafter provided.”

Sec. 4 provides that “no release, waiver or conveyance of the estate so exempted shall be valid unless the same is in writing, subscribed by said householder and his or her wife or husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged.”

Sec. 25, Oil. 30, E. S., provides that “no judge or other officer shall take the acknowledgment of any person to any deed or instrument of writing, as aforesaid, unless the person offering to make such acknowledgment shall be personally known to him to be tlie real person who and in whose name such acknowledgment is proposed to he made, or shall be proved to be such by a credible witness, and the judge or officer taking such acknowledgment shall, in his certificate thereof, state that such person was personally known to him to be the person whoso name is subscribed to such deed hr writing, as having executed the same, or that he was proved to he such •by a credible witness (naming him).”

Sec. 27, Cli. 30, gives the form of an acknowledgment. This form requires the officer to state in his certificate that the grantors were personally known to him; and further, that the grantors appeared before him in person on the day of the acknowledgment and that they acknowledged the instrument as their free and voluntary act for the uses and purposes there set forth.

Sec. 28 of the same act provides that, in cases whore it is intended to release the homestead, then the certificate of acknowledgment shall contain a clause substantially as follows: Including the release and waiver of the right of homestead.”

The foregoing are the several sections of the statute relating to the estate of homestead and the manner of its release so far as they relate to this controversy.

It will be seen that both the body of the chattel mortgages as well as the certificates of the officer to both the mortgages, contain a release of the homestead, and in that respect no objection can be made to the certificate.

But it will be seen that both certificates are fatally defective in other respects and wholly silent upon material matters required to he therein stated, by the 25th section of the statute above quoted. There is no statement in either certificate that James and Hannah Wheeler were known to the officer to bejhe same persons who signed the mortgage, or that tiiey were proven to be the same persons by a credible witness, nor that the Wheelers personally appeared before him on the day of the acknowledgment or on any other day.

We regard these omissions in the certificate of the officer as fatal. The omitted provisions are clearly and explicitly required by the statute to be in the certificate to make it valid and operative for the purpose of releasing the homestead. This construction of the statute has been adopted in many decisions of our own Supreme Court. Boyd v. Cudderback, 31 Ill. 113; Smith v. Miller, 31 Ill. 157; Vanzant v. Vanzant, 23 Ill. 541; Best v. Cohlson, 89 Ill. 465; Warner v. Crosby, 89 Ill. 320.

Many other cases might be cited in support of the same construction°given the statute, hut the foregoing are amply sufficient to show that the question seems to be settled and not open to further controversy.

We fully agree with the construction given to the statute. We hold that there must be a strict compliance with both the substance and form of the statute in the mode of executing and acknowledging deeds and mortgages, for the conveyance of land, or any interest therein, in order to make the deed or mortgage effective to convey the homestead.

We think this court has jurisdiction of this appeal under the certificate of the judge, and that the statute which provides that the court shall have no jurisdiction under the certificate of the judge when the title to real estate is involved, is not applicable to this case. The title is only incidentally involved.

The object of the proceeding is to enforce payment of the mortgages and, upon failure to pay, asks that the real estate may be sold to compel payment. This does not involve the title in the sense of the statute. The statute only applies when the title is the main contention in the suit and is directly involved.

The decree of the Circuit Court is reversed and cause remanded, with directions to proceed in harmony with the views expressed in this opinion.

Reversed and remanded..