text:
    Theresa Siekmann, Appellant, v. Roy F. Stanton and Mrs. Roy Stanton, Known as Grace Stanton, Appellees.

      Heard in this court at the February term, 1928.
    Opinion filed June 1, 1928.
    Rehearing denied July 28, 1928.
    R. D. W. Holder, for appellant.
    McGlynn & McGlynn, for appellees.

       The court has directed that this opinion which was formerly ordered to be published in abstract form (249 Ill. App. 663) be reported in full.

   Mr. Justice Newhall

delivered the opinion of the court.

This is a suit in chancery to foreclose a mortgage executed by appellee, Roy F. Stanton, on July 26,1906, to secure his note for $5,000, as part of the purchase price for the premises in question bought from appellant. The note was given for three years, with interest at 6 per cent, payable semiannually. The bill alleged that the whole of the principal sum, with interest from January 26, 1922, was due and unpaid.

Appellee’s answer admitted the execution of the note and mortgage, and that the same was given to secure a part of the purchase,, money for the premises; that the note and mortgage were made to Henry T. Renshaw, as trustee, but that the same were assigned and delivered to appellant on the day of their execution; that the note was paid by delivery to Renshaw, as agent, of the full amount of the principal of $5,000 and interest of $100 on May 26, 1919; that the same had been paid to.Renshaw, the trustee, from time to time, both principal and interest, at the direction and with the knowledge and consent of appellant.

Replication was filed by appellant denying that she authorized and instructed Stanton to pay to Renshaw, or that he had any authority to receive said money for her.

The cause was referred to the master to take proofs and to report his findings of facts and law. The master reported, recommending a decree for appellant. Exceptions were filed by both parties to the master’s report. Béfore the hearing of the exceptions, the appellees filed an amendment to their answer, alleging that appellees paid the interest, from time to time as it became due, to Renshaw, and on the 26th day of May, 1919, Stanton paid the principal sum of $5,000 and accrued interest to that date to Renshaw.

The chancellor overruled the exceptions of appellant and sustained the exceptions of appellee to the master’s report, and entered a decree dismissing the bill for want of equity.

The master in his report found and reported, in part, as follows:

“The issue in this case is whether complainant is to be charged with the payment made by Dr. Stanton to Mrs. Siekmann. It is contended on behalf of defendants (appellees) that Dr. Stanton was expressly authorized by Mrs. Siekmann to make payments to Henry T. Renshaw as her agent. . Dr. Stanton testified that when the transaction was had in 1906 he told Mrs. Siekmann that he wanted to pay off the principal at .the rate of one thousand ($1,000.00) dollars per year, more or less and she told him this would be satisfactory, and that he could make payments when he was ready and that such" payments could be made to Henry T. Renshaw and that he would not need to see Mrs. Siekmann about such payments.
‘ ‘ The Master finds as a matter of fact that said conversation did occur as stated by Dr. Stanton and that he did make an arrangement at that time when the mortgage was given in 1906, whereby he could make payments of one thousand' ($1,000.00) dollars per year. He made no such payments, however, and the mortgage was continued in effect without any formal renewals thereof. In 1919 when he decided to pay off the indebtedness he did not rely upon the agreement with Mrs. Siekmann concerning the partial payments but relied upon Renshaw getting the papers for release. ....
“The Master therefore finds that the material allegations of the bill of complaint are substantially proven and true and recommends that a decree for foreclosure be entered in accordance with the prayer thereof.”

Appellant objected and excepted to the finding of fact on. the part of the master that said conversation did occur as stated by Dr. Stanton, and that he did make an arrangement, when the mortgage was given in 1906, whereby he could make payments of $1,000 per year.

The trial court overruled appellant’s exceptions, and sustained those of appellee, and found, by its decree, that the note secured by said mortgage was fully paid and discharged by appellee Stanton; that the same was paid to the trustee therein named, Henry T. Eenshaw, at the direction and with the knowledge and consent of appellant, who had, prior thereto, instructed and authorized Stanton to pay to the trustee, Eenshaw, the interest due on said note, and any part or the whole of the principal remaining unpaid whenever Stanton was in a position to pay the same or any portion thereof, or at any time Stanton felt like so doing, and that, pursuant to such instructions and authorization from appellant, Stanton did pay to Eenshaw, trustee, the interest on said principal indebtedness from time to time until the 26th day of May, 1919, when he paid to Eenshaw, trustee, the principal sum of $5,000, then remaining due and unpaid, and the sum of $100 to cover interest due thereon at the time of such, payment, whereby the whole indebtedness and the interest thereon were fully and finally discharged.

Appellant contends that the finding and decree of the trial court are not warranted by the competent evidence in the record.

Dr. Eoy F. Stanton, appellee, testified that on July 25, 1906, he went to the home of appellant and bargained with her for the purchase of the premises in question for the sum of $6,000; that they agreed to meet the following day at Renshaw’s real estate office, in East St. Louis, to draw the papers for the transfers, whereby he was to pay down $1,000, take a deed of the property, and give back a mortgage for $5,000, due in three years, with interest at 6 per cent, payable semiannually. After the deed, note, and mortgage were made, he told appellant that he wanted to pay off the mortgage at the rate of $1,000 a year, more or less, reducing it as fast as he could; that appellant said that would be perfectly satisfactory, and that he could pay this at any interest paying date, or any time he was ready, but to pay it to Renshaw, and that he need not come to see appellant about it; that he paid the interest in January and July of each year; that he paid Renshaw on the 26th day of May, 1919, $5,100, being the principal of $5,000 and $100 interest from January to May; that he gave three checks aggregating $5,100, payable to J. W. Renshaw’s Sons, which checks were indorsed by Renshaw, and charged against appellee’s bank account; that he received a receipt from Renshaw for the payment, which receipt recited that it was in full for the mortgage, dated July 26, 1906, and was signed by J. W. Renshaw’s Sons, Agents, with the initials of Henry T. Renshaw.

Counsel for appellee admitted at the hearing before the master that Renshaw received the money and did not pay it over to appellant. Appellee Stanton further testified that he never had any conversation with Renshaw about extending the mortgage loan. On cross-examination, Stanton testified that he received by mail his deed from the recorder; that he knew that the note and mortgage belonged to appellant; that just prior to paying the loan to Renshaw, he called at his office and told him he could pay the note and mortgage any dime it was ready, and Renshaw dared him to do it, to which appellee replied, “All right, you get the papers and I will fix it up”; that, when he paid the $5,100, he got what he understood to be the papers — that is, the original note and mortgage with appellee’s signature written thereon as good as the witness could write it, together with what purported to be the certificate of the recorder, reciting that the note and mortgage had been canceled and paid.

The doctor did not have these papers at the time of testifying, but claimed that the same had been burned in what he called a “winding up” process of burning old papers that were of no further use; that he had never looked for these papers until after Renshaw’s failure in 1922, when he was called upon by appellant’s son and her attorney to make payment of the note; that he knew he ought to have the note and mortgage when he paid it, and supposed that he did have the original note and mortgage.

John 0. Watson, brother-in-law of Dr. Stanton, testified for him that he was present, in the oEce of Renshaw and overheard a part of the conversation between the parties at the time of the making of note and mortgage in 1906, and heard appellant tell the doctor that he could pay any part of the principal any time he got ready and could pay it there to Mr. Renshaw, for he was her agent, but, on cross-examination, he testified he was not sure that appellant was present, and that what he heard was to the effect that the doctor said he would be able to pay $1,000 a year, and that appellant replied that she would take partial payments of $1,000, and that the doctor could pay it off in that way.

Henry T. Renshaw testified for appellee, by deposition taken at Menard, Illinois, where he was confined in the penitentiary, that he was formerly engaged in the real estate and insurance business in East St. Loins for about 25 years; that appellant and Dr. Stanton came to his office on July 26, 1906, for the purpose of having a deed, note, and mortgage executed pursuant to a previous arrangement made without his knowledge ; that he had nothing to do with the negotiations for the purchase or sale; that they told him that the purchase price of the property was $6,000; that $1,000 was to be paid down and the balance secured by a mortgage ; that the doctor said he would pay $1,000 a year and appellant said that was agreeable to her, and that the payments were to be made to him at his office; that the doctor did pay $5,100 in one payment in 1919; that prior thereto he paid the interest every 6 months, which was delivered either to appellant or her son; that the note and mortgage were made out in his name, as trustee; that he immediately assigned same to appellant, and delivered the note to appellant, and then sent the deed and mortgage to be recorded, and that, after recording, the mortgage was delivered to appellant and the deed to Dr. Stanton; that he knew both Dr. Stanton and appellant prior to 1906, but had never, prior thereto, had any business transactions with either; that after 1906 the doctor paid him the semiannual interest, which he always delivered either to appellant or her son; that, after the payment of .the $5,100, he credited the same on his books to appellant, but never paid her the money or advised her that it had been paid; that he continued to make semiannual interest payments to appellant until he failed in 1922; that after 1906 he collected some rents for appellant and also interest on several of her loans; that Dr. Stanton never made any partial payments of $1,000 on the principal of the loan, but that the only payment on the principal was the full amount of $5,000 made in May, 1919; that, when the loan matured in 1909, Dr. Stanton came to his office, paid the interest, and wanted to know if he could renew it, because he was not ready to pay it oif, and asked him if he would see appellant; that he did ask appellant to let the loan stand, and she said, “Yes,” to just carry it along, and they agreed to let it run until the doctor was ready to pay it; that he talked with the son of appellant to see if it was agreeable to let the loan stand, and that thereafter the interest was paid by the doctor up until May, 1919, and that he either gave the interest to appellant or to her son, who generally collected the interest at his office.

Appellant testified that she was 69 years old, and resided near East St. Louis; that she has had the possession of the note and mortgage in question since the date of their execution; that she kept them in her box at the bank; that Renshaw never had possession after they were signed at his office; that she does not read or write English, and that Casper Siekmann, her son, attended to her business affairs; that he kept her accounts and took charge of payments made to her. Appellant denied that she ever told appellee that Renshaw transacted her business; that, at the time of the sale of her property, she wanted to go to Belleville to have her attorney make out the papers, but that the doctor did not want to take the time, and suggested going to some office at East St. Louis; that they finally agreed to meet at Renshaw’s office to close the deal; that $1,000 was paid at Renshaw’s office to her, and that Renshaw made out the note and mortgage for the balance of the purchase price; that she received the note on the day the deed was signed, and within a few days the mortgage, after recording, was mailed to her; that nothing was ever said about the making of partial payments of $1,000 on the mortgage, and she denies that she ever authorized appellee to make payments on the principal to Renshaw, or that he was ever her agent, or had ever transacted any business for her prior to 1906; that she received her interest on the loan regularly from Renshaw; that she had never seen Dr. Stanton from the time of making the sale in 1906 until the trial of this case; that her son attended to the matter of collecting the interest

Casper Siekmann, son of appellant, testified in her behalf that he was present when Dr. Stanton made the deal for the purchase of his mother’s'house; that, after the deal was closed at Renshaw’s office, his mother gave him the note and mortgage to put in her box at the bank; that he received the interest from Renshaw for his mother, and, when the note matured, Renshaw asked him if his mother would extend the loan, and he told Renshaw that it would be all right if Dr. Stanton paid the interest; that Renshaw paid the interest regularly until 1922; that in August, 1922, after Renshaw had failed in business, he went to see Stanton about the loan, and Stanton told him over the telephone that it would have been much better if he had paid appellant direct, which conversation was denied by the doctor; that he went with his mother’s attorney, Mr. Turner, to see Dr. Stanton on August 16,1922, and heard the conversation between Turner and Dr. Stanton.

L. D. Turner, witness for appellant, testified that he was employed by appellant to collect the loan in question, and that he went with Casper Siekmann on August 16, 1922, to Dr. Stanton’s office to demand payment of the note, and the doctor replied that he had paid it to Renshaw, and that he searched his papers for the purpose of finding the note and mortgage, which he claimed had been delivered to him at the time of payment, but was unable to find them, and later said they had been burned.

In order to bind the holder of a promissory note by a payment of the principal thereof to one other than the holder, it must appear that the person receiving the payment had either possession of the note or express or implied authority from the holder to receive such payment; and the payor is chargeable with the duty of seeing that the person to whom he makes payment thereof has authority from the holder to receive such payment, if such person has not the note in his possession. (Griffin v. Halbert, 196 Ill. App. 601, 603; For tune v. Stockton, 182 Ill. 454; Stiger v. Bent, 111 Ill. 328; Lochenmeyer v. Fogarty, 112 Ill. 572; 2 C. J. 626, § 263.)

The fact that an agent is authorized to receive instalments of interest as they become due on a note or dther obligation does not give him implied power to collect the principal. (2 C. J. 621.)

The proof in the record is that Renshaw never had possession of the note and mortgage after the making and delivery thereof in 1906, and appellee does not rely upon the fact that he was deceived by Renshaw when payment of the principal was made to him, and there was delivered to him a spurious note and mortgage, which had been executed by Renshaw without appellant’s knowledge. The sole claim made by appellee is that Renshaw had special authority to collect in this particular instance, because of the conversation that he had with appellant in 1906, at the time of the delivery of the note and mortgage.

If it be true that the conversation did occur, as related by Dr. Stanton as to this alleged special authority to pay Renshaw, the real question then to be decided is whether or not, under all the circumstances, it was broad enough to warrant the payment of the entire principal in one payment, 10 years after the maturity of the note, to one who did not have the note or mortgage in his possession.

In 2 C. J. 555, it is said: “It is a cardinal rule of agency that every grant of authority should, if possible, be so construed as to give effect to the intention of the principal in creating the agency,” and, in support of the text is cited the case of Halladay v. Underwood, 90 Ill. App. 130, where it is said: “Every authority of an agent must find its ultimate source in some act or word of the principal, indicative of his intention, and where the authority is sought to be implied from the words or conduct of the principal, its extent can not exceed the necessary and legitimate effect of the words and conduct relied upon. The extent of the agency can not be assumed because of convenience; it must exist in the intention of the principal, either express or implied.”

In the Halladay case, it was sought to justify the prepayment to a general agent of the lessee of rent for a year under a lease calling for it in monthly instalments, and it was conceded that bare authority given by the lessee to his agent to collect rent from month to month, as it fell due under the lease, would not suffice to authorize him to receive in advance a part of the year’s rent and acquit for the whole. It was further held that the circumstances of a prepayment of rent for a year, under a lease calling for it in monthly instalments was an unusual one — one which the lessors, as business men, might well have hesitated to do in the absence of knowledge of certain authority on the part of the agent, and was so extraordinary in character as to put the lessor upon inquiry as to the extent of the agent’s authority.

In the case at bar the special authority to collect, taking appellee’s version as being true, was limited to partial payments of $1,000 on the principal, and could not be construed to warrant the payment of the entire principal 10 years after the maturity of the note.

Upon the maturity of the note, the evidence shows that, pursuant to the consent of appellant, the mortgage indebtedness was permitted to stand, subject only to the understanding and agreement that the interest would be paid regularly. It can well be said that, under this arrangement for extension, the previous authority, if given, to make partial payments of the principal, was revoked or abandoned by the parties, and would require a new authority from the principal, in order to justify the payment of the entire principal without the production of the original note or mortgage.

Appellee, when he made his payment of the entire principal to the agent, asked the agent Renshaw to get the note and' mortgage, which would indicate that he was paying to the agent upon the basis that he had possession of the note and mortgage, and was not relying upon the alleged limited authority given to the agent 13 years before the date of payment. Appellee knew that appellant was the owner of the note and mortgage in question, and made no inquiry of her to determine whether or not it was proper to pay to the agent, but relied upon the apparent genuineness of the papers, which Renshaw delivered to appellee. Appellee was not only guilty of negligence in that respect, but, under all the circumstances, taking into consideration the fact that the loan had been renewed from time to time for over a period of 10 years after maturity, he was not warranted in assuming that the agent was acting within the apparent scope of his authority to collect the entire principal in one payment. When an agency is special the authority must be strictly pursued, and the principal is not bound, if the agent exceeds it. (Fortune v. Stockton, 182 Ill. 454; Blackmer v. Summit Coal & Mining Co., 187 Ill. 32; 2 C. J. 562, § 204.)

We are of the opinion that the competent evidence in the record does not sustain the finding and decree of the circuit court, and, accordingly, the decree of the circuit court is hereby reversed and the cause remanded to the circuit court, with directions to enter a decree in favor of appellant in accordance with the findings and recommendations set forth in the report of the master in chancery, bearing date June 30, 1927, on file in said cause.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Newhall

license: Public Domain

text:
    Allan J. Postel, Administrator of the Estate of Henry Hucke, Deceased, et al., Appellees, v. E. R. Hagist, Appellant.

      Heard in this court at the February term, 1928.
    Opinion filed June 1, 1928.
    William E. Wheeler and Bruce A. Campbell, for appellant; Wheeler & Oehmke and Kramer, Kramer & Campbell, of counsel.
    D. E. Keefe, for appellees; Keefe & Listeman, of counsel.

       The court has directed that this opinion which was formerly ordered to be published in abstract form (249 Ill. App. 663) be reported in full.

   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of St. Clair county entered in favor of appellees (complainants) and against appellant (defendant) for the sum of $58,510.97.

The cause was referred to the master in chancery of the circuit court to hear the evidence and state his conclusions of law and fact.

The master heard the testimony offered by the respective parties including certain depositions taken by agreement of the parties and reported in substance as follows:

“This is a suit by Allen J. Postel, administrator of the estate of Henry Hucke, deceased, Katie E. Kammann, Phillip M. Kammann, Alma K. Postel, Erna E. Postel, Oneida M. Hucke, Laurine L. Hucke, a minor, by Allen J. Postel, her next friend, against E. R. Hagist to compel him to account for proceeds of the sale of four hundred shares of the capital stock of Kolb Coal Company of the property of Henry Hucke, trustee, sold by Mr. Hagist, and to require him to pay over the amount of such proceeds not previously accounted for with interest thereon.
“The theory of the bill of complaint is that in a certain transaction wherein the defendant Hagist sold eight hundred shares of the capital stock of the Kolb Coal Company, an Illinois corporation, to one C. C. Field, the defendant Hagist acted as a trustee for Hucke in the sale of four hundred shares, but that in settling with Hucke, Hagist paid only a portion of the amount realized from the sale of the Hucke stock and wrongfully retained the remainder of such amount.
“The answer sets up the defense that the defendant did not represent and act for Hucke in the sale, and denies that defendant ever assumed to act for Hucke, and avers that from March 20, 1922, the defendant had an option to purchase the stock of Hucke for the sum of $130,000.00; that on March 23, 1922, the defendant exercised his rights under said option and purchased said stock for said sum and on the same date paid Hucke said amount of $130,000.00 in payment of said four hundred shares. It is denied that defendant failed to account for any moneys owing to Hucke or that he concealed any facts which he was under obligation to disclose.
“The Kolb Coal Company is an Illinois corporation, operating coal mines at Mascoutah, St. Clair County, Illinois. For a long time prior to March, 1922, the stockholders were P. H. Sauter (600 shares), M. S. Fuqua (600 shares), E. R. Hagist (400 shares) and Henry Hucke, as trustee (400 shares).
“On March 20, 1922, the defendant Hagist obtained from Henry Hucke a written option to purchase the stock at any time before March 24, 1922, for the sum of $130,000.00. The option contract recites that Henry Hucke, as trustee for the persons therein named, possessing four hundred shares of capital stock of Kolb Coal Company, in consideration of the sum of one dollar, receipt of which was acknowledged, agrees to sell said four hundred shares to E. B. Hagist at any time on or before March 24, 1922, for the sum of $130,000.00 net cash. The circumstances under which the option was given are not in evidence, for the reason that Hucke is dead and Hagist is not a competent witness to relate them. It is apparent, however, that at the time the option was delivered Hucke also gave Hagist the certificate for the Hucke stock, endorsed by him in person.
“On March 23, 1922, in pursuance of some previous arrangement, Hagist met Field and his associates at the directors’ room of the First National Bank in St. Louis, Missouri. . . . During this meeting a deal was made whereby Mr. Hagist sold and delivered to Field and his associates eight hundred shares of said capital stock, being Hagist’s four hundred shares and the four hundred shares of Hucke, concerning which this suit arises. The buyers paid the amount of $400,000 by delivering to Hagist a check for $370,000.00 which was exchanged for a cashier’s check on the First National Bank, in St. Louis, and a check for $30,000 which was delivered over to the Kolb Coal Company to discharge an obligation of Hagist to the Company for that amount. On the same day, after banking hours, Hagist paid Hucke at Mascoutah, where both parties resided, the sum of $130,000.00, which Hucke deposited to his account in the First National Bank of Mascoutah. ...
“The equitable ownership of the stock for which Hucke was trustee was as follows: Hucke himself owned a one-fourth interest therein. Katie E. Kammann and Mary E. Kammann each owned a one-fourth interest therein and Phillip M. Kammann, Elva K. Kammann, Meta E. Kammann, Karl P. Kammann, Alma K. Postel, Erna E. Postel, Oneida M. Hncke and Laurine L. Hncke each owned one-thirty-second interest therein.
“Elva K. Kammann, Meta E. Kammann, Karl P.' Kammann and Mary E. Kammann, who were made defendants in the amended bill filed their written entry of appearance and therein stated that they and each of them claimed no interest in the subject matter of this suit. This disclaimer results that the defendant Hagist is not required to account for any interest in the proceeds which these defendants would be entitled to receive. Their interests were: Mary E. Kammann, one-fourth; Elva K. Kammann, one-thirty-second; Meta E. Kammann, one-thirty-second, a total of eleven-thirty-seconds. The amount which Mr. Hagist withheld was $70,000, and eleven-thirty-seconds of this amount which is not sought in this proceeding amounts to $24,062.50. . . .
“The total amount of principal and interest owing this date (by the defendant to the complainants), is the sum of $57,517.55. . . .”

Appellant filed objections to the master’s report which were overruled and ordered by the court to stand as exceptions. No objections or exceptions were filed' by appellees to the master’s findings of fact and the trial court entered a decree in accordance with the master’s findings and recommendations.

Appellant contends that there is an entire variance between the allegations of the bill and the proof; that appellees have failed to prove their case and that the trial court erred in refusing to sustain appellant’s exceptions to the master’s report.

The report of a master in chancery, while prima facie correct, is of an advisory nature and all the facts are open for consideration in the first instance by the trial court, and in case of appeal, by the reviewing court, and without regard to the findings of the master upon any particular question of fact, the ultimate and final question is as to whether or not the decree rendered by the chancellor is the proper one under the law and the evidence. Chechik v. Koletsky, 311 Ill. 433; Hoelscher v. Hoelscher, 322 Ill. 406; Union Bank of Chicago v. Gallup, 317 Ill. 184.

The above rule is subject, however, to another rule of chancery practice that where no objections or exceptions are filed to the master’s report, the findings of fact of the master are conclusive as against a party, who has the right, but does not object in apt time to the master’s report. Johnson v. Voudrie, 233 Ill. App. 572; Singer, Nimick & Co. v. Steele, 125 Ill. 426; Gehrke v. Gehrke, 190 Ill. 166; Barney v. Commissioners of Lincoln Park, 203 Ill. 397.

Under these well-settled rules appellees are now concluded by each arid every finding of fact found against them by the master, while appellant having fully and specifically objected and excepted to all findings against him is in a position to urge here that such findings are not supported by the evidence and that the chancellor did not enter a proper decree under the law and evidence.

In order to clarify the issues that are properly preserved for consideration by. this court it is necessary to briefly refer to those findings of fact by the master which under the above rules of chancery procedure should be taken as conclusive against appellees.

The master found that the following averments of the appellees’ bill of complaint were not proven by the evidence, viz.: “That (appellant) E. ft. Hagist represented to O. O.. Field that Henry Hucke was in ill health and that Hagist could induce Hucke to sell if Field would buy Hagist’s stock; that Hucke had previously agreed with Hagist that Hagist should represent Hucke in the sale and should receive for Hucke whatever amount the stock could be sold for, with the condition that the four hundred shares should not be sold for less than $130,000.00, to all of which Hagist agreed; that Hagist concealed from Hucke the fact that Hagist had sold the Hucke stock for more than $130,000.00 and fraudulently represented to Hucke that $130,000.00 was the full amount which the Hucke stock had sold for.”

The master further found “that (appellees) complainants undertook to prove but failed to establish that any general arrangement existed whereby Hagist attended to the affairs of Hucke in relation to the Kolb Coal Company.”

The master reported that the foregoing material averments of the bill were not proven by the complainants, but did find that the following averments of bill were sufficiently proven by the evidence, viz.:

“That Hagist acted for Hucke and did not act under his option contract; that if Hagist had an option on the Hucke stock, he never exercised his rights under it; that Hagist assumed to act fdr Hucke and did not act in good faith and retained a large sum of money which rightfully and equitably belonged to complainants; that complainants did establish that the shares of stock (in question) were in the possession of Hagist; that Hagist did not act by virtue of his option and that Hagist undertook to act for Hucke in the sale; that this in effect established a trust relation and compels Hagist to account in full for the proceeds of his transaction.”

If appellees’ contentions are to prevail in this case, it must be because the affirmative findings of the master in behalf of appellees justify the entry of the decree of the court below. One of the questions to be determined is whether the master was justified in finding from the evidence that appellant Hagist did not act by virtue of his option, but that he assumed to and did act as agent and trustee for Hucke and therefore was in duty bound to account to him for one-half of the entire sale price of the Hagist and Hucke stock which admittedly was sold for a gross sum of $400,000.

In addition to the facts set forth in the master’s findings, the record shows that for a long time prior to March 23, 1922, the day the sale in question was made, all of the stockholders in the coal company had been willing and anxious to sell their holdings of stock and numerous negotiations had taken place between Field and the various stockholders, but nothing tangible resulted. In one of these negotiations the Hucke stock had been signed, in blank, and placed in escrow at an agreed price for delivery at considerable less than was obtained through the sale to appellant.

Shortly prior to March 23, 1922, Field began new negotiations for acquiring the stock of the coal company. Field secured an option on the Fuqua 600 shares for $125,000 and on the Sauter 600 shares, but the record is not clear as to the price of the latter, but both the Sauter and Fuqua stock was pledged to appellant as president of the coal company to secure debts owing by them to the company.

The coal company was the owner of a large amount of bonds and other securities, all of which were in the possession of appellant as president of the company. It appears that Field was attempting to purchase all the stock,of the company at one time so that he might use the securities owned by the company to complete his purchase.

During the negotiations between appellant and Field the latter stated that he was willing to purchase his stock for $300,000, but did not wish to purchase the Hucke stock, as appellant’s stock together with the Sauter and Fuqua holdings would give him such control of the company (more than 2/3) that he could force the Hucke interest out. Appellant on March 20, 1922, secured the option in question from Hucke together with his 400 shares of stock indorsed in blank, and sold the same with his 400 shares for $400,000. On the day of the sale, Field apparently lacked $100,000 to complete the purchase of 800 shares controlled by appellant, and he borrowed the same from the bank where the deal was consummated.

Appellant and Hucke resided at Mascoutah wheré they carried on rival general stores and were connected with the same bank. Hucke was treasurer of the coal company and kept in close touch with its affairs but for personal reasons of his own he had his brother-in-law look after his interests at the St. Louis office of the company. He was a man of considerable means, attended to his own business, as well as that of others, and was fully capable of protecting his own interests at the time in question and up to the day of his death, which occurred about 18 months thereafter.

There is no direct evidence, except as shown by the written contract, and by the surrounding circumstances in evidence, as to what actually occurred between Hucke and appellant leading up to the particular transaction in question, on account of the fact that this suit was instituted after Hucke’s death and appellant was therefore not a competent witness to testify to the transaction.

The proof shows that appellant went to the office of Troll, an attorney who represented the coal company and had been familiar with the prior negotiations of Field. Troll prepared the option contract which is dated March 20, 1922, the sale price being left blank, and the same was afterwards inserted in Hucke’s own handwriting and delivered with the 400 shares of stock indorsed by him in blank which was produced by appellant on the day of the closing of the deal on March 23, 1922.

Prior to signing and delivering the option contract and stock to appellant, Hucke discussed the amount of the consideration, to be placed in the option, with Kammaim, whose wife was a beneficial owner of part of the stock. They agreed on a consideration of $125,000 and later Hucke phoned Kammann that he had increased the price to $130,000 and asked him if that was satisfactory. Hucke knew that appellant was negotiating with Field and advised Kammann that the deal was coming to a head.

A few days after Hucke had received the $130,000, which was paid to him on the evening of the day appellant closed his deal with Field, Hucke held a family meeting of those who were beneficially interested in the distribution of the $130,000 realized by him as trustee and then distributed the fund among the parties entitled thereto, and at this time a copy of the option agreement was exhibited.

The master stated in his report that the testimony of appellee Julius Postel, father of Allan Postel, administrator of the Henry Hucke estate, proved that Hagist presumed to act for Hucke in the sale and that he did not rely upon his option contract to buy the Hucke stock and that he was concealing the price actually received for the 800 shares.

The master also stated in his report that the testimony of Allan Postel proved that the defendant Hagist presumed to act for and on behalf of Hucke and that he did not rely upon his right to purchase the Hucke stock; that certain circumstances corroborate this conclusion, viz.: That there was no assignment of the option and no closing of it prior to the sale to Field, and that because appellant did not, so far as the evidence discloses, by word or deed, elect to exercise his option nor transfer it.

The testimony of Julius Postel was not denied by appellant and the material parts thereof are in substantial corroboration of appellant’s theory of the facts. The master drew certain conclusions from the figures testified to by Julius Postel, which might indicate that appellant was not telling just what amount was realized from the stock in question, but appellant was under no legal obligation to disclose to the witness the truth concerning the transaction. It does not appear that the witness was in any way acting for Hucke or- that he ever communicated to him this conversation.

The testimony of Allan Postel was denied by appellant and his denial was corroborated by his son, who was present during the alleged conversation. In this conversation appellant is alleged to have said that he received only $260,000 for the entire 800 shares, but we find that appellant’s version of this alleged meeting with Allan Postel is as worthy of belief as that of Postel’s.

It is apparent, however, from the master’s findings that he placed his principal reliance for his conclusions upon the assumption that appellant did not have the legal authority under the option contract to sell the Hucke stock to Field and thereafter pay Hucke the amount named in the option contract. It is apparent that the master arrived at his conclusions and presumptions, concerning the manner of appellant’s fulfillment of his contract, from loose and uncertain statements alleged to have been made after the transaction. By reason of the death of Hucke, and Hagist’s inability to testify to the real situation, the master indulged in unwarranted conclusions and presumptions against appellant, which the evidence and the law applicable thereto does not justify.

We are thus brought to a consideration of the principal question in the ease, which the master stated to be, whether Hagist exercised his option in such legal manner as to authorize him to retain the benefits óf his. contract, or whether Hagist acted for and on behalf of Hucke as agent and trustee in making the sale.

There is no serious contention as to the legality of the option itself, and to- determine the full legal rights thereunder, there must be taken into consideration the further undisputed fact that Hucke, at the time of the delivery of the signed option, also delivered therewith the very stock which was to inure to the benefit of Hagist at his option under the terms thereof.

An option is a continuing offer which the offerer may not withdraw until the expiration of the time limit. Adams v. Peabody Coal Co., 230 Ill. 469.

The undisputed evidence shows that appellant had the option prepared by a lawyer, leaving only one condition to be inserted, viz., the price for the stock. It was then delivered to Hucke, who after consultation with Kammann, wrote in the price of “one hundred and thirty thousand dollars,” then signed and delivered the same with the stock to appellant. On the day of the sale the signed option and indorsed stock were produced by appellant. Appellant delivered the stock to Field and on the same day, within the time fixed in the option, paid the price therein fixed to Hucke and took his receipt therefor. Hucke distributed the proceeds, received from Hagist, to the beneficiaries entitled thereto and at the time of the distribution exhibited a copy of the option. This evidence clearly shows that appellant acted under the option agreement.

There is no convincing evidence in the record, which sustains the contention that Hagist acted as agent or trustee for Hucke, or that he occupied any fiduciary relation or was guilty of any fraud which would require him to account for any moneys secured by him over and above the amount fixed in the written option contract.

Appellees contend that Hagist was legally bound to first accept the option within the time fixed, and pay the price stipulated, before he would be authorized to deliver the stock to Field, and that Hagist’s act of selling and delivering to Field before paying Suche operated to make Hagist liable for the actual price received.

If it be said that Hagist did not strictly follow the literal wording of the option, yet Hagist’s act of selling under the option and then paying Hucke the precise amount agreed upon was subsequently ratified by Hucke. If Hucke had wished to secure the payment of his money before parting with the control of his stock, he had the full legal right to protect himself by withholding possession of the certificate. He did not do this, but in all probability he was anxious to sell and was willing and intended to impower Hagist to make delivery of the stock and rely upon his responsibility to either return the stock or cash within the time fixed in the option. In 13 C. J. 285, it is said: “When it is said that the. acceptance must be ‘communicated’ to the offerer, this does not necessarily mean that he shall have actual personal notice of it. The rule is that the agreement becomes obligatory from the moment the minds of parties meet. . . . It is always sufficient that the offer be accepted in the mode either expressly or impliedly required by the offerer; and if the offerer requires or suggests a mode of acceptance which turns out, so far as giving actual notice to the offerer, to be insufficient or entirely nugatory, it is the fault of the offerer, and the agreement is complete.”

Applying the above principles to the instant case, it is clear that Hucke, by delivering the stock, signed in blank, with knowledge of what purpose it was to be used for, thereby agreed that appellant had the authority, at any time during the life of the option, to sell and deliver the stock and thereby become accountable to Hucke for the price named in the option.

The provisions of the Hniform Sales Act, Cahill’s St. ch. 121a, If 4 et seq., are applicable to the sales of corporate stock. See Illinois-Indiana Fair Ass’n v. Phillips, 328 Ill. 368. Section 18, Cahill’s St. ch. 121a, If 21, of the above act provides as follows:

“Property in specific goods passes when parties so intend.] (1) Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
“(2) For the purpose of ascertaining the intention of.the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade and the circumstances of the case.”

Section 19, Cahill’s St. ch. 121a, If 22, of the same act provides:

19. “Rules for ascertaining intention.] Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. . . .
“(2) When goods are delivered to the buyer on approval or on trial or on satisfaction, or- other similar terms, the property therein passes to the buyer — .
“ (A) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction.”

Section 48, Cahill’s St. ch. 121a, If 51, of the same act provides as follows: “The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller,

Under these provisions of the statute it is solely a question of what the parties intended by their contract, acts, conduct and the objects they had in view and wished to carry out. Hagist, by his act of selling and delivering Hucke’s stock to Field, thereby, under the statute, elected to accept and adopt the terms of the option which made it obligatory upon him to pay Hucke the agreed price at the time therein fixed.

By section 48, Cahill’s St. ch. 121a, If 51, Hagist (the buyer) must be deemed to have accepted the terms of the option, when, as this section provides, the stock had been delivered to him and he had sold and delivered the same to Field, which act was inconsistent with the , ownership of Hucke (the seller) in said stock certificate.

The option contract in question when considered in connection with a simultaneous delivery of the stock certificate is somewhat analogous to the so-called “sale or return” contract as is described and commented on in House v. Beak, 141 Ill. 290, 300, and in this class of contracts it is held that the title vests immediately in the purchaser, defeasible on the performance of the condition. In such cases, the property in the goods passes to the purchaser subject to an option in him to return them within the fixed time; the purchaser deals with the goods as his own, disposes of them as he pleases and is only liable to pay for them at the price fixed without any reference to the price at which he sells them.

After due consideration of all the evidence we are of the opinion that the decree of the court below is not supported by a preponderance of the competent evidence in the record and that the trial court erred in not sustaining the exceptions of appellant to the master’s report.

For the reasons aforesaid the decree of the circuit court is reversed and the cause remanded with directions to dismiss appellees ’ bill of complaint for want of equity.

Reversed and remanded with directions.


author: Mr. Presiding Justice Shurtleff

text:
    Commercial Credit Trust, Appellee, v. W. O. Land, Appellant.
    Gen. No. 8,184.

      Heard in this court at the October term, 1927.
    Opinion filed May 2, 1928.
    Clifford N. Coolidge, Adlai H. Bust and Homer English, for appellant.
    Livingston & Murphy, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

Appellee sued appellant in replevin in the county court of McLean county to recover the possession of one Overland DeLuxe sedan automobile, the right to the possession of which was alleged to be in appellee. The declaration alleged that appellant unlawfully withheld the possession of said machine from appellee. There was a count in replevin and one' in trover. Appellee is a common-law trust, and the declaration did not originally set out the names of the trustees. Later, by leave of court, the declaration was amended and the trustees were made parties plaintiff.

Appellant filed four pleas: First, the general issue, non cepit; second, nul tiel corporation, the Commercial Credit Trust; third, property in the defendant, and fourth, non detinet. The first, second and fourth pleas conclude to the country. Appellee filed a replication to the third plea, denying defendant’s right of property and averring ownership in the plaintiff, which concluded to the country, and issues were made upon all the pleas. There was a trial by jury and appellee submitted in proof a negotiable promissory note for the principal sum of $986.31, dated January 5,1926, signed by one F. C. Larey and payable to the order of the Kelley Motor Company in 16 instalments, the first to be paid on March 1, 1926, said note being indorsed, without recourse upon the Kelley Motor Company, to appellee. There was also submitted in proof a chattel mortgage, under the same date, in proper form, executed by said Larey and running to said Kelley Motor Company, to secure said note, describing the said automobile, to secure the possession of which this suit was brought. The mortgage had been properly recorded in the recorder’s office of McLean county on January 18,1926, and bore upon its face the assignment of the Kelley Motor Company to appellee.

Appellee further submitted proofs that it was the owner and holder of the note and mortgage and the amount due thereon, and that in May, 1926, the machine was found in the possession of appellant and a demand made for its return. Default had been made in the payment of the note. There was no further testimony introduced by appellee and appellant offered none. Each party asked for an instructed verdict. The court instructed the jury to find a verdict for appellee and there was a verdict and judgment for appellee and appellant has appealed.

The principal and substantially the only question in the case is whether appellee made out a prima facie ease. Does the giving of a negotiable note and chattel mortgage upon personal property raise a presumption that the mortgagor is in the possession of or the owner of such property? There is no substantive testimony, other than the giving of the mortgage, tending to show that F. C. Larey, the mortgagor, ever had the possession or was in any way interested in said automobile. It is contended by appellant that the plaintiff in replevin can only recover upon the strength of his own title, and if such title is denied that the burden is upon him to show a general or special property in the goods, citing Pease v. Ditto, 189 Ill. 456; Constantine v. Foster, 57 Ill. 36. This states the law correctly and it is held in 11 C. J. 725: “The burden is on the mortgagee to establish the facts entitling him to the relief sought.” It is to be noted that the pleadings do not set out the chattel mortgage and no issue was raised in the pleadings as to the validity of the mortgage or as to appellee’s rights under it. If the chattel mortgage had been pleaded, and appellant had made no issue as to its validity, force or effect, then the instruments could have been introduced in evidence without further proof, and the rule followed in Woodward v. Donovan, 167 Ill. App. 503, 507, and kindred cases would have applied to this case. On the trial of the cause appellant was first apprised of the chattel mortgage, under the record, by the offer to introduce the instrument in evidence. Appellant offered proper objections. No proof was offered tending to show that the mortgagor had ever been the owner or in the possession of the property. Appellees rely upon some language used by the court in John Hancock Mui. Life Ins. Co. v. Watson, 200 Ill. App. 318, wherein the court says: ‘ ‘ The assumption most favorable to appellant is that Gertrude Gordon owned that part of the crop which she mortgaged to appellant.” This statement was made in the case where all of the rights of the parties were before the court and cannot be followed as a precedent in this case. Other cases are cited by appellee, but we do not deem that they are precedents on the specific question raised. It is held in 11 O. J. 726: “To make a prima facie case against a claimant the mortgagee must show possession or title of the mortgagor at the date of the mortgage,” citing McCommons v. English, 100 Ga. 653, 28 S. E. 386, where it is held:

“The evidence showed that the mortgagor was in possession of the property claimed at the time of the levy, but there was no evidence whatever that the mortgagor either owned it or was in possession of it when the mortgage was executed. This court has frequently decided that, ‘to make a prima facie case against the claimant in favor of the plaintiff in mortgage fi. fa., it is not sufficient to prove possession of the mortgaged property by the mortgagor at the time of the levy, but either possession or title in the mortgagor at the date of the mortgage must be shown.’ Morris v. Winkles, 88 Ga. 717,15 S. E. 747, and cases there cited. It follows that the verdict finding the property subject was unsupported by the evidence, and therefore contrary to law.”

However, in Allcock v. Loy, 100 Ill. App. 573, 575, in an identically similar case, the court held:

“Appellant’s evidence made a prima facie cáse, and did not disclose that appellee was in any manner such an interested third person as the statute provides for, and as appellee offered no evidence, the court could not assume that he had such interest. Mere naked possession is not such an interest, and if appellee had other interest than mere possession, the burden was upon him to prove it. Appellant should not have been required to prove that appellee had not such interest.”

Neither party cited any case determinate of this question. While in replevin, plaintiff must recover on the strength of his owm title, on reason and authority we conclude that the rule laid down in Allcock v. Loy, supra, is the more acceptable doctrine. , As a rule of evidence it is more in consonance wdth various statutory provisions, Cahill’s St. ch. 98, 79, and relieves the plaintiff from the anomalous burden of proving a negative. If the defendant has title to the property in the case at bar, it would be much more simple for the defendant to establish such title than for the plaintiff to establish his lack of title. In any event, we prefer to follow the rule laid down by a court of equal jurisdiction in this State than to adhere to a merely arbitrary holding of a court of a sister State. While the pleas of non cepit and non detinet admit title and right in appellee, there remained appellant’s plea of title in the defendant, which plea did raise squarely the issue as to appellee’s special interest in the property and right to possession. (Reynolds v. McCormick, 62 Ill. 412; Constantine v. Foster, 57 Ill. 36.) The submission of the note and mortgage in evidence did establish, prima facie, appellee’s special interest and right to possession.

Appellant’s second plea of nul tiel corporation raises no issue in the case. The declaration does not allege a corporation. The matter should have been reached by motion or a verified plea. (Estate of Godair v. Case, 220 Ill. App. 348.) The pleá of general issue waives any irregularity in the name or names of the parties bringing suit. (West Chicago Park Com’rs v. Schillinger, 117 Ill. App. 525.)

Appellant insists that the assignment of mortgage was not properly a part of the record of the mortgage and was not properly proven. In this we concur, but the assignment of the note by the payee "operates, ipso facto, as an assignment of the mortgage which secures the note. (Brass v. Oreen, 113 Ill. App. 58.)

Appellant strenuously insists that "the court had no jurisdiction to try the case, for the reason that in the description of the automobile set out in the chattel mortgage there are figures indicating: “List Price —1075” and “Cash Selling Price — 1190,” and it is insisted that these figures are some evidence of value. The mortgage was executed on January 5, 1926. The affidavit of replevin was assigned and sworn to on June 4, 1926, and alleges that the automobile was of the value of $800. It is held that the value stated in plaintiff’s affidavit of replevin is presumably the real value, until in subsequent proceedings the estimate is shown to be erroneous. (Peterson v. Fowler, 76 Mich. 258, 261; Bradley v. Morse, 21 Wis. 680,. 681; Darling v. Conklin, 42 Wis. 478, 481, and Carew v. Matthews, 41 Mich. 576, 579.)

It is further held that the value of the property, upon which the question of the court’s jurisdiction depends, is the value as of the time of filing suit. (Title Guaranty & Surety Co. v. Hofmann, 170 Ill. App. 8.) There is no testimony in the record as to values which would tend to oust the county court of its jurisdiction to try the cause.

Finding no error in the record the judgment of the county court of McLean county is affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    The People of the State of Illinois ex rel. Sibert Kurtz, Commissioner of Highways, etc., Appellee, v. Layo W. Meyer et al., Appellants.
    Gen. No. 8,202.
    Heard in this court at the February term, 1927.
    Opinion filed May 2, 1928.

      Paul F. Grote and William & Barry Mumford, for appellants.
    Williams & Williams, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

The appeal taken in this case was transferred by the Supreme Court to this court. (People ex rel. Sibert Kurtz v. Meyer, 328 Ill. 122.) And the facts involved in this controversy are summarized in the opinion of the court transferring the case:

1 ‘ Sibert Kurtz, commissioner of highways of Cincinnati township, Pike county, in the name of the People of the State of Illinois upon his relation, filed his petition in the circuit court of Pike county for a writ of mandamus against appellants. The petitioner alleged his official position, the organization of Sny Island Levee Drainage District under the Levee act in 1880, and the organization of Hadley Creek sub-district thereof; that appellants are the’duly appointed, qualified and acting commissioners of said district and sub-district, and that after the organization of the sub-district the then commissioners thereof caused to be made and excavated a large drainage ditch of the width of forty feet and the depth of eight feet, with levees twelve feet high on each side thereof, over and across a public highway in the town of Cincinnati, at a point where theretofore there was no channel, depression or water-course, and that thereafter they restored the highway to a condition suitable to public travel by constructing approaches of earth, a wooden trestlework 220 feet in length on the east side and 40 feet in length on the west side of the drainage ditch, and an iron bridge over the ditch; that the flooring upon the bridge and trestlework is of oak boards, and that it has rotted and decayed to such an extent as to render the same unsafe and dangerous to public travel, and that although the commissioners of the sub-district had repeatedly been asked to repair the same and render it safe for public travel they neglected to do so, and as a result of such neglect the traveling public have been forced to abandon the use of the bridge and highway and detour for a great distance in order to cross the drainage ditch. The petition prayed for a writ of mandamus commanding appellants to proceed to repair the trestlework and bridge and place the same in safe condition and suitable for public' travel. A demurrer filed to this petition was overruled, and appellants electing to stand by their demurrer, the writ was awarded. This appeal followed.
“The only question involved in this case is whether, when a drainage district organized under the Levee act excavates a channel across an established public highway, thereby temporarily destroying a segment of such highway at a point not in the line of a natural channel, depression or water-course, and thereafter restores such highway to its former condition of usefulness and efficiency by the construction over the cut of a good and sufficient bridge and approaches thereto, such drainage district has done all that is required of it in respect to such highway, or is it still continuously bound to repair and mend such bridge whenever it shall become impaired and unsafe for use by the action of the elements.”

The statute provides that the commissioner of highways shall “have general charge of the roads and bridges of his town or district, to keep the same in repair and to improve them so far as practicable.” It also makes it the duty of the commissioner of highways “To determine the taxes necessary to be levied on property within his town or district for road and bridge purposes, . . . and said highway commissioner, in determining the amount to be levied, shall state separately the several amounts to be levied for the construction of roads, the maintenance of roads, the construction of bridges, the maintenance of bridges, the purchase of machinery, the repairs to machinery, the oiling of roads, and the prevention and extirpation of weeds.” Cahill’s St. ch. 121, |f 56; chapter 121, section 50, SmithHurd Revised Statutes. A bridge which has been built over a natural or an artificial channel to restore a public highway, and the highway is thereby restored, becomes a part of such public highway, and under the statute would necessarily pass- under the control of the highway commissioner of the town where such highway bridge is situated.

The provisions of section 55 of the Levee Act, Cahill’s St. ch. 42, 53, placed the burden and expense of building or rebuilding and repairing bridges to restore a public highway, which had been destroyed by the construction of a drainage ditch, on the town in which the drainage ditch and road involved were situated, but this provision was held by the Supreme Court to be in conflict with sections 9 and 10 of Article IX of the State Constitution, Cahill’s St. Const. 1870, Art. IX, §§ 9,10, and therefore invalid. People ex rel. Burow v. Block, 276 Ill. 286; Brougher v. Lost Creek Drain. Dist., 277 Ill. 156. However, the decision of the court in the cases above cited was construed in People ex rel. Speck v. Peeler, 290 Ill. 451, to have no reference to the question of the maintenance of bridges which have become a part of the public highway, after the highway is restored, and referring to the Block and Brougher cases, and in construing them, the court said: i i There is no intimation in those decisions that a road district is to be entirely relieved from its statutory duty of repairing and re-building bridges at such crossings when such repair or re-building is required by reason of the bridges becoming out of repair or dilapidated by reason of public travel, or that a drainage district should forever repair and maintain bridges on such crossings.” In the Peeler case the commissioner of highways had filed a petition for mandamus to compel the levee district to build bridges across ditches of the drainage district at each of five places in the township where the drainage ditches had destroyed parts of the public road and to forever keep them in repair, and concerning this matter the court said:

“Appellants insist that under the facts admitted by the demurrer the drainage district owed to the road district, when the highways were cut and the bridges removed, the duty to simply reconstruct and re-build the roads and the bridges so as to restore them to their former degree of usefulness and efficiency and that it has fully discharged that duty. Appellee contends that the duty of the drainage district is continuous, and that as each bridge or structure becomes dilapidated or destroyed, by use of the traveling public or otherwise, it must forever repair or re-build the same at its cost. . . . When the bridges were removed by the drainage district and afterwards re-built and the highway completely restored at those crossings, the bridges and the part of the highway restored constituted parts of the highway, of which the highway commissioners had full control. . . . The duty of the road district to repair and re-build those bridges after they were restored, as aforesaid, still rests upon the road commissioners for the road district. They possess the only authority conferred by law for levying a tax or incurring a liability for public road and bridge purposes. (People v. Block, supra.) No further liability can attach to the drainage district on account of such bridges to repair or re-build the same, when such repairing or re-building is only Required by reason of public travel thereon or natural decay. ’

It is insisted, however, by the appellee, that the decision in the Peeler case has application only to instances where bridges are constructed over natural depressions or watercourses; and it is true that the ditches referred to in the Peeler case, over which bridges were to be built or re-built, were located over natural depressions or watercourses, and that in this case the ditch in question is entirely artificial. But we are unable to perceive how the fact that a watercourse which makes necessary the building of a bridge to restore a highway to its former efficiency for public use and travel, and thereby becomes a part of such highway, would be in any different legal category than a bridge built over a drainage ditch partly artificial, or over a drainage ditch which runs along a natural depression or watercourse; in either case the bridge when it restores the highway becomes a part of the public road and passes under the control of the commissioner of highways.

In the Block case, the drainage ditch involved had also been built along a natural depression or watercourse, but the court held concerning the applicability of the law there decided that this circumstance made no difference, and disposes of the point raised in this way: “Neither does the fact that in the earlier case the ditch over which the bridge was constructed was a natural water-course and in the later case was artificial constitute any valid distinction, though it appears to have been so regarded. The destruction of a part of the highway, requiring its repair, the cost of which can be met only by taxation of the town, is not different in character whether the place of such destruction is at a natural water-course or not.”

For the reasons stated, we are of opinion that the burden of maintaining the bridge trestle work in question does not rest on the drainage commissioners but upon the town where the highway is situated; that the duty of providing for the repair of the injuries and impairment of the same due to wear and tear caused by public travel and use, or to natural decay, rests on the appellee as commissioner of highways; and that therefore the demurrer to the petition for mandamus should have been sustained. The judgment awarding the writ of mandamus against the appellants is therefore reversed.

Reversed.


author: Mr. Presiding Justice O’Connor

text:
    Frank Barran, Jr., by Frank Barran, Sr., Defendant in Error, v. Stanley Adanick and John Pawlareczgk, Plaintiffs in Error.
    Gen. No. 32,951.
    Heard in the first division of' this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    A. M. Mysogland and Charles W. Lamborn, for Stanley Adanick, plaintiff in error.
    A. H. Brown, for defendant in error; A. J. W. Appell, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this writ of error the defendant Stanley Adaniek seeks to reverse a judgment of $1,200 rendered against him and his chauffeur in a personal injury case.

. It appears from the record that the defendant John Pawlareczgk was the agent or servant of Stanley Adaniek and while driving Adaniek’s automobile in Chicago so negligently operated the car as to strike and injure the plaintiff.

The question for decision is; May a joint action be maintained against the master and his servant where the master’s liability is founded upon the doctrine of respondeat superior?

The authorities show that the question is in great confusion in this and other States as well as the Federal courts. The question has not been squarely passed upon by the Supreme Court of this State and the decisions of the Appellate Courts are in direct conflict.

The first opinion on this question in this court was written by Judge Gary in 1897 — Johnson v. Magnuson, 68 Ill. App. 448 — where it was held that an action would lie against a master and his servant jointly for injuries sustained by reason of the negligence of the servant while in the course of his employment, while in the case of Herman Berghoff Brewing Co. v. Przbylski, 82 Ill. App. 361, a contrary conclusion was reached. It was there held that a judgment against a master and his servant could not be sustained where the liability of the master rested on the doctrine of respondeat superior. One of the three judges in the latter case dissented and said that he thought that the Johnson case, supra, had been decided correctly. In the Herman Berghoff Brewing Co. case, a number of authorities from other jurisdictions are cited, chief reliance being-placed upon the case of Warax v. Cincinnati, N. O. & T. P. Ry. Co., 72 Fed. 637, and Gableman v. Peoria, D. & E. Ry. Co., 82 Fed. 790. This court in two recent cases followed the Berghoff case — (Bartlett v. Sullivan, 241 Ill. App. 410; and Buckley v. Edgewater Beach Hotel Co., 247 Ill. App. 239), one of the three judges in the latter case dissenting. There is a strong intimation in Van Meter v. Gurney, 240 Ill. App. 165, that a joint action would lie against a master and his servant where the liability of the master is based on the doctrine of respondeat siiperior. There is an elaborate review of authorities in that case but the point was not squarely passed upon, the decision turning on other considerations.

In volume 2, Shearman & Bedfield on Negligence (6th Ed.), sec. 248, published in 1913, the rule is stated as follows:

“Wherever a master can be held responsible for the tortious negligence of his servant, the two are generally held jointly as well as severally liable (citing numerous authorities). ... A different rule prevails in Massachusetts, and probably in Maine.”

In 39 C. J. 1314, it is said:

“There is much conflict of authority as to whether a master and servant can be sued jointly where the liability of the master is based not on a participation by him in the servant’s tort, but solely on the doctrine of respondeat superior. In some jurisdictions, where the master’s liability for the negligent or wrongful act of the servant is based solely upon the doctrine of respondeat superior, and not by reason of any personal share in the negligent or wrongful act, by his presence or express directions, a joint action cannot be brought against them. But in most jurisdictions, where the question has arisen, a joint action against a master and his servant may be maintained for injuries resulting from the negligence or other wrongful act of the servant for which the master is liable under the doctrine of respondeat superior.”

In support of this statement the author cites authorities from Alabama, California, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Minnesota, Montana, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oklahoma, South Carolina, Texas, Washington, West Virginia, Wisconsin, and a case from England. Some of these authorities will be hereinafter referred to.

In 18 R. C. L. 780, § 241, in discussing the question now under consideration, it is said:

“The decisions are in hopeless conflict as to the right of one who has sustained an injury by reason of the employee’s wrongful act to maintain a joint action .against employer and employee. According to some courts the employer may not be joined with the employee unless he was personally present when the wrongful act was done or expressly directed the employee to do it. These courts say that while the master is answerable for the acts or omissions of his servant on the ground of respondeat superior, the negligence of the servant is neither in fact nor in legal intendment the joint act of the master and the servant. A more liberal view, however, is taken by a majority of the courts, employer and employee being deemed to be jointly liable and jointly suable for the employee’s wrongful act.”

In Southern R. Co. v. Arnold, 162 Ala. 570, it was held that, in an,action for damages caused by the negligence of the servant, the master may be joined as a party defendant with the servant. The doctrine announced in that case was adhered to in the case of Central of Georgia Ry. Co. v. Carlock, 196 Ala. 659, where it is said (p. 661):

“Where the tortious conduct or omission relied on for a recovery is alone the result of negligence in the performance of duty on the part of an agent or servant, the principal or master and the derelict agent or servant may be joined as defendants in a single count.”

In Rogers v. Ponet, 21 Cal. App. 577, the court quoted with approval from Mr. Bailey in his work on Personal Injuries as follows (p. 581):

“The general rule is that, where the negligence was that of another servant, plaintiff may join as defendants the employer and the negligent servant; and it makes no difference that the liability of the master is imposed by statute, while the liability of the negligent servant is imposed by common law.”

The Supreme Court of Florida in Stinson v. Prevatt, 84 Fla. 416, held that when the liability of a principal and his agent for a tort grows out of an injury caused by the agent’s wrongful act "committed in his capacity as agent, a joint action against the principal and the agent may be maintained.

In Southern R. Co. v. Grizzle, 124 Ga. 735, 739, the court said:

“The engineer may.be sued, and the railway company is also liable to suit, on account of his conduct. Can the engineer and the railway company be jointly sued, when the sole ground of the liability of the railway company is the act of the engineer hiniself ? While the case of Central Railway Company v. Brown, 113 Gra. 414, 38 S. E. 989, 84 Am. St. Rep. 250, is not identical with this case in its facts, it is controlling in principle. In that case the railway company and a passenger were sued jointly for an assault upon another passenger, in which the conductor took part. The liability of the railway company resulted solely from the act of the conductor. It was held that the railway company and the passenger who participated with the conductor in the assault could be jointly sued. It is unnecessary to add anything to the reasoning in that case. It is conclusive upon the question now before us.”

This rule was adhered to in Southern R. Co. v. Harbin, 135 Gra. 122, where after disposing of this question, the court said further (p. 125):

“The primary liability to answer for such an act, therefore, rests upon the employe and, when the employer is compelled to answer in damages therefor, he can recover over against the employe. Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461; ... 1 Shear. & Redf. Neg. (5th Ed.) §242.”

In Wright v. Compton, 53 Ind. 337, it was held that where a person was injured as a result of the carelessness of a servant while in the performance of his master’s business, the master and servant were both liable and may be joined as defendants in an action to recover the damages sustained.

The Supreme Court of Iowa in Dunshee v. Standard Oil Co., 165 Iowa 625, 630, said:

“That the master is liable for the consequences of a tort committed by the servant in the course of his duty, and while acting within the scope of his employment, is a rule established by many authorities. . . . And when a tort has been committed by an agent within the line of his employment, a joint action may be maintained against the principal and the agent.”

The same rule is announced in Illinois Cent. R. Co. v. Houchins, 121 Ky. 526, where it is said (p. 531):

“It is settled that under the law of Kentucky Williams and the railroad were jointly liable to Houchins for his injury, and might be sued jointly or severally.” In that case a mail clerk was injured through the negligence of a locomotive engineer, and it was held that the engineer and his employer, the railroad company, might be sued jointly or severally.

In Mayberry v. Northern Pac. Ry. co., 100 Minn. 79, it was held that a joint action would lie against the master and his servant when based upon the negligent act of the servant. There the court said (p. 82):

“We have no statute in this state flying any rule upon the subject of the joinder of parties defendant in actions in tort. . . . We must, therefore, refer to the rules of the common law. . . . An examination of the books "discloses an irreconcilable conflict in the decisions upon the question. It is held by some courts that separate persons, acting independently, but causing together a single injury, are joint tort-feasors, and may be sued either jointly or severally. . . . We do not feel called upon, however, to analyze the cases on this subject, for the purpose of evolving a rule applicable to tort actions in general; for the weight of authority sustains the right of an injured party to join in the same action parties bearing the relation to each other of the defendants in this case, namely, master and servant, the right of action springing from the wrongful act of the servant for which the master is responsible. The authorities even upon this branch of the subject are by no means harmonious, but the weight of reason sustains the right of joinder. . . .
“No substantial reason can be given for requiring separate actions in such cases. On the contrary, the orderly administration of justice will be conserved by permitting the joinder. Both parties are liable for the consequences of the negligent acts of the servant, and one action and one recovery will terminate the litigation and avoid the necessity of separate trials of the same issue. . . . One of the principal reasons assigned by those courts which hold such a joinder improper is that the right of contribution is lost and cannot be resorted to by one against the other codefendant. This reason as applied in cases of this kind, is unsound. There is, it is true, a general rule that the right of contribution does not exist as between joint tortfeasors; . . . Where there is no concert of action in the commission of the wrong, the rule does not apply. In such cases the parties are not in pari delicto as to each other, and as between themselves their rights may be adjusted in accordance with the principles of law applicable to the relation in fact existing between them.

The Supreme Court of Montana in Knuckey v. Butte Electric R. Co., 41 Mont. 314, held that a master and his servant may be joined in an action for personal injuries which resulted from the negligence of the servant, the master being liable under the doctrine of respondeat superior.

In Whalen v. Pennsylvania R. Co., 73 N. J. L. 192, it was held that where a person was injured by the negligence of a servant of another who was acting in the line of his employment, he might maintain an action against the master and servant jointly or he might proceed separately against either. The court there said (p. 194):

‘‘ So far as this court is concerned, the rule is settled that, where an injury is caused by the negligence of an agent acting in the line of his employment, the action may be joined against such agent, and his principal, or may be separate against either. ’ ’

In Phelps v. Wait, 30 N. Y. 78, it was held that a principal and his agent may be jointly sued for the negligence of the agent, where the negligence of the agent resulted in injury to the plaintiff, the agent acting in the line of his employment. The court there said (p.79):

“The question was carefully considered by the Supreme Court in the leading case of Wright v. Wilcox, 19 Wend. 343, and has since been followed in several other cases. Montfort v. Hughes, 3 E. D. Smith 591; Suydam v. Moore, 8 Barb. 358; Hewett v. Swift, 3 Allen 570.”

In Schumpert v. Southern Ry., 65 S. C. 332, it was held that a master and a servant were jointly liable for the tort of the servant committed within the scope of his authority. In the course of the opinion the court there referred to the case of Parsons v. Winchell, 5 Cush. (Mass.) 592, which held to the contrary, and in discussing that case the South Carolina court said (p. 336):

“The principal reason assigned for this view (referring to the Parsons case) is that, if master and servant were made jointly liable, the master could not call on the servant for contribution in case he should satisfy the execution.”

But it was there held that that reasoning was unsound, the court referring to Cooley on Torts, where the general rule, that there was no contribution between joint tort-feasors, was stated and continuing the opinion quoted from Mr. Cooley (pp. 14A-145) as follows:

“But there are some exceptions to the general rule, which rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrongdoers to the injured party, yet as between themselves some of them may not be wrongdoers at all, and their equity to require the other- to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party, by reason of some relation, is made chargeable with the conduct of others.”

And the court further said: “Furthermore, the reason assigned in the Massachusetts case that .the act of the servant is not the act of the master, even in legal intendment or effect, unless the master directs or adopts it, is not consistent with the liability of the master for the acts of the servant, as held in this state. . . . The servant is liable because of his own misfeasance or wrongful act in breach of his duty to so' use that which he controlled as not to injure another. The master is liable because he acts by his servant, and is, therefore, bound to see that no one suffers legal injury through the servant’s wrongful act done in the master’s service within the scope of the agency. Both are liable jointly, because from the relation of master and servant they are united or identified in the same tortious act resulting in the same injury. ’ ’

The same court in Jenkins v. Southern Ry. Co., 130 S. C. 180, said (p. 184):

“It is unquestionably settled by the decisions of this court and the Supreme Court of the United States that an action against a master, upon his imputed liability for the negligence or willful act of his servant, committed within the course of his employment, and against the servant, upon his personal liability for the act, does not present a separable controversy, but that the two may be united as defendants under an allegation of joint and concurrent tort.” Citing Chesapeake & O. Ry. Co. v. Dixon, 179 U. S. 131, and numerous other authorities.

The Supreme Court of Wisconsin in Greenberg v. Whitcomb Lumber Co., 90 Wis. 225, said (p. 232):

“The complaint states but a single cause of action. It is the same cause of action against both defendants, arising from the same acts of negligence, — the master for the negligence of its servant; the servant for his own misfeasance. Both master and servant, being liable for the same acts of negligence, may be joined as defendants. Wood, Mast. & Serv. (2d Ed. p. 667); Wright v. Wilcox, 19 Wend. 343; Phelps v. Wait, 30 N. Y. 78.”

In the Herman Berghoff Brewing Co. case (82 Ill. App. 361), where it was held that the master and servant could not be joined where the liability of the master was predicated upon the doctrine of respondeat superior, the court cited the Gableman case (82 Fed. 790) and quoted with approval from the opinion, of Judge Baker of the Federal Court of the District of Indiana, holding that a master and servant could not be jointly sued. In that case Judge Baker followed the rule announced in the Warax case (72 Fed. 637), but in a later case the same Judge Baker, in Charman v. Lake Erie & W. R. Co., 105 Fed. 449, after an exhaustive review of the'authorities, held that a master and servant might be sued jointly for injuries resulting from the servant’s negligence. He there cites a'number of authorities holding that a joint action would not lie against the master and his servant, including the Warax case, supra, and continuing said (p. 452):

“In the case of Warax v. Railway Co., supra (72 Fed. 637), it was held that there were separable controversies in a joint suit for tort against master and servant, because the liability of the master for the negligence of the servant in his absence and without his knowledge or approval arises from the principle of public policy which requires that the master shall be held responsible for the acts of his servant done in and about the master’s business, while the liability of the servant arises from his personal wrong.
“The foregoing cases seem to rest upon too narrow a view of the relation of master and servant.”

And on page 454 it is said: “That the master and servant may be jointly sued for an injury resulting from the servant’s negligence is supported by the cases of” (then follow more than 20 authorities).

And continuing the court said:

“Judge Cooley, in his Treatise on Torts (2d Ed. [1888] p. 164), says:

“ ‘The case of carriers of persons is a conspicuous instance in which the failure of a servant to observe due care may constitute a legal wrong to third parties, and render him and his master jointly responsible. In undertaking to carry, the carrier assumes the duty to carry safely, in so far as the highest vigilance will enable him to do so. A railroad company acting as such carrier employes an engineer whose duty to the company is to run the train with skill and prudence. Now, although there are no contract relations between the engineer and the person who is to be carried, yet when an individual is placed in a position of responsibility, and the property and especially the persons of others are intrusted to his prudence, his skill, and his fidelity, so that his negligence may inflict serious and perhaps irreparable injury, it is reasonable that the law should make it the right of every person thus circumstanced to demand from him a vigilance corresponding to the responsibility. And this we understand to be the rule. The negligence in such cases is that of both master and servant, and the liability, as in other cases where two or more are' chargeable with a wrong, may be enforced in a suit against one or against both. ’ ’ ’

In American Bridge Co. v. Hunt, 130 Fed. 302, the opinion was written by Judge Burton who sat with Judge Taft, who wrote the opinion in the War ax case (72 Fed. 637). In discussing the question'now under consideration Judge Burton said (p. 304):

“Whether there is such legal identity of master and servant, or concert between them, as to justify a joint action when the act of negligence charged is that of the servant alone, and the liability of the master is bottomed not upon any immediate fault of the master, but upon the liability of the latter for the negligent acts of the servant, may admit of much discussion. Warax v. C., N. O. & T. P. Ry. Co. (C. C.) 72 Fed. 637 ; ... It must be confessed, however, that the doctrine of the common law in reference to the joinder of master and servant in one suit based alone upon the tort of the servant, as in the Warax Case and other cases cited above, is shaken by contrary intimations found in Powers v. Chesapeake, etc. Ry. Co., 169 U. S. 92, . . . and Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131, . . . This question, though a nice one, and not foreclosed by authoritative decision, does not necessarily arise upon this transcript.”

In Armstrong v. Kansas City Southern Ry. Co., 192 Fed. 608, the district judge in considering the question before us quotes from Judge Taft’s opinion in the Warax case and at page 611 said:

“While in the case of Powers v. Chesapeake & Ohio Ry. Co., 169 N. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673, the Supreme Court did not declare a different rule from the one in the Warax Case, still, it intimated strongly its disapproval of it.
“In the case of Alabama Southern Railway Company v. Thompson, 200 U. S. 215, 26 Sup. Ct. 163, 50 L. Ed. 441, Mr. Justice Day, delivering the opinion of the court and referring to the opinion by Mr. Justice Gray in the Powers Case, said:
“ ‘After thus stating the rule, the justice commented on the Warax Case, supra, as a departure of the former ruling of the Circuit Court.’ ” The court then com1 mented further on the Powers case.

In the Powers case (169 U. S. 92), Powers brought an action against the railway company and its conductor, engineer and fireman to recover damages for personal injuries. The question whether this could be done under the law came before the Supreme Court of the Unitéd States. It was pointed out that the action was not severable, the court, however, observing that a contrary rule had been announced in the War ax case.

In Chesapeake & O. Ry. Co. v. Dixon, 179 U. S. 131, an action to recover damages was brought against the railway company and certain individuals in its employ. The question arose whether the action was severable or joint. The opinion of the court was delivered by Mr. Chief Justice Fuller, who said (p. 136): “In War ax v. Cincinnati, N. O. & T. P. R. Co., 72 Fed. Rep. 637, Taft, J., held that there were separable controversies in such cases, because the liability of the master for the negligence of his servants in his absence, and without his concurrence or express direction, arises solely from the policy of the law which requires that he shall be held responsible for the acts of those he employs, done in and about his business, while the liability of the servant arises wholly from his personal act in doing the wrong. ’ ’

The court then discusses American and English authorities and continuing says (p. 137):

“Whatever its sources or the principles on which it rests, the rule itself is firmly established; and many courts have held the identification of master and servant to be so complete that the liability of both may be enforced in the same action, although other courts have reached the opposite conclusion.”

In Alabama Great Southern Ry. Co. v. Thompson, 200 U. S. 206, it was held that a railroad corporation being sued jointly with its engineer and conductor, the plaintiff seeking to hold the corporation liable only by reason of the engineer and conductor’s negligence, the cause did not present a severable controversy. The opinion was written by Mr. Justice Day who said (p. 214):

“In a leading case in this court (Chesapeake & O. R. Co. v. Dixon, 179 U. S. 131, 45 L. ed. 121, 21 Sup. Ct. Rep. 67), many of the cases were reviewed by the Chief Justice who delivered the opinion, and it was shown that in a number of English and American cases it has been held that, as to third persons, the master is responsible for the negligence of his servant in a joint action against both, to recover damages for an injury. In the case of Warax v. Cincinnati, N. O. & T. P. R. Co., 72 Fed. 637, a case which has been much cited and sometimes followed in the Federal courts, it was held that a joint action could not be sustained against master and servant for acts done without the master’s concurrence or direction, when his responsibility arises wholly from the policy of the law, which requires that he shall be held liable for the acts of those he employs in the prosecution of his business. And it was held that the petition against the engineer and the company presented a case of misjoinder, and could be removed on the application of the nonresident company. ’ ’

The court then quotes from the opinion in the Poioers case, supra, and continuing said:

“ ‘A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject-matter of the-controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.’ (Citing cases.)
“After thus stating the rule, the justice commented on the Warax Case, 72 Fed. 637, as a departure from the former ruling of the circuit court.”

In Cincinnati, N. O. & T. P. Ry. Co. v. Bohon, 200 U. S. 221, it was again held that a railroad company might be sued jointly with its servants for the negligence of the latter.

In Beal v. Chicago, B. & Q. R. Co., 298 Fed. 180, the court said (p. 181):

“When the only ground of negligence averred is the personal negligence of the engineer, pilot, driver, or servant in charge of a common carrier, and when thus the liability of such carrier is bottomed solely upon the rule of respondeat superior, since, in such a situation, if the engineer, etc., were not guilty of negligence, and therefore liable, the carrier could not have been negligent, and could not possibly be liable, no separable controversy exists, and the case is not removable, when the carrier is sued jointly with its servant in charge, or in control of the offending vehicle or instrumentality. Alabama, etc. Ry Co. v. Thompson, 200 U. S. 206.”

Numerous other Federal decisions follow the Thompson case.- Nor is this rule of law, which permits an action to be brought against the master and the servant for the negligence of the latter, of recent origin, but under the common law both were held in an action on the case. In Michael v. Alestree, Elvinz’s Reports, Vol. II, p. 173, decided about the year 1793, the plaintiff brought an action against the master and his servant for negligence of the latter in driving a team of horses and coach into Lincoln’s-Inn-Fields, the master being absent, as a result of which the plaintiff was injured, and the court there said: “Yet the action was brought against him (the master) as well as his servant, and both found guilty.”

We might cite a number of other authorities which hold that a master and servant may be joined in an action where damages are claimed on account of the negligence of the servant, the master being held liable on the doctrine of respondeat superior, but we think a further reference to them is unnecessary. A great many of the decisions follow Judge Taft in the War ax case, 72 Fed. 637, but we think this has not been done since the decision by the Supreme Court of the United States in 200 U. S. 206, where that case has been brought to the attention of the court rendering the decision in the particular case. We think there is no substantial reason for requiring two separate actions against the master and servant, but on the contrary the orderly administration of justice will be promoted by permitting the joinder. The only evidence that will be required to prove a case against the master, in addition to that required in a case against the servant, is evidence that the servant is on the master’s business at the time of the accident. Many of the opinions of the courts holding that the master and servant cannot be joined in an action brought to recover damages for personal injuries caused by the negligence of the servant, in our opinion indulge in puzzling refinements, theorizing, and metaphysical discussions, apparently losing sight of the practical situation, which is the administration of justice between the parties. We perceive no reason why the administration of justice will not be advanced by determining the controversy in one action.

Judge Gary in delivering the opinion in the Johnson case, 68 Ill. App. 448, in referring to the case of Parsons v. Winchell, 5 Cush. (Mass.) 592, which held that a joint action could not be maintained, said (p. 449):

“And one of the reasons there (in the Parsons case) given, viz., that after a recovery in such an action, and satisfaction of the execution by the master, he would not be entitled to reimbursement by the servant, never was the law. 4 Am. & Eng. Ency. of Law, 12.”

Judge Gary was right. Lowell v. Boston & L. R. Corp., 23 Pick. (Mass.) 24; Washington Gaslight Co. v. District of Columbia, 161 U. S. 316; Chicago Rys. Co. v. Conway Co., 219 Ill. App. 220.

We have considered the other contentions made by the defendant but find them without merit.

The judgment of the superior court of Cook county is therefore affirmed.

Affirmed.

McSukely and Matchett, JJ., concur.


text:
    M. Levinsohn and Solon Gold, Trading as Motor Car Finance Company, Defendants in Error, v. Martin P. Miller, Plaintiff in Error.
    Gen. No. 32,967.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    C. W. Larsen and F. J. Karasek, for plaintiff in error.
    Mort. D. & Frank Goldberg, for defendants in error ; Mort. D. Goldberg, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiffs brought an action of trover against the defendant for the conversion of a truck, their claim being in the sum of $800. Upon trial before the court without a jury there was a judgment in favor of the plaintiffs for $800 and the defendant has sued out this writ of error.

The record discloses that the defendant owned a motor truck which was incumbered by a chattel mortgage which he was unable to pay when the indebtedness became due. He applied to plaintiffs who agreed to advance the money to pay off the mortgage. This was done and defendant gave plaintiffs a chattel mortgage to secure his indebtedness to them. Defendant made payments from time to time on account of his indebtedness to the plaintiffs. He afterwards disposed of the truck to a third party without the written consent of the plaintiffs and, according to their testimony, without any knowledge on their part, although the defendant offered testimony tending to show that he had obtained plaintiffs’ consent to dispose of the truck. After the truck was disposed- of, the evidence is undisputed that plaintiffs became aware of that fact but were unable to locate the truck, and they demanded payment of the balance due them from the defendant. The defendant made some payments after the truck had been disposed of. It was agreed upon the trial that there was a balance due from defendant to plaintiffs of $442.83. There was evidence indicating that the value of the truck at the time defendant disposed of it was $1,000.

Defendant contends that he should have been allowed a jury trial which he requested at the time the case was called for trial, but this was not in accordance with the statute. Cahill’s St. ch. 37, tí 418.

A number of other contentions are made, but in the view we take of the case it will be unnecessary to notice them further than to say that, since it was admitted that there was a balance of $442.83 due plaintiffs, the judgment in excess of this sum is unwarranted. The only interest plaintiffs had was to receive the balance due them under the mortgage. They were not entitled to the value of the truck. Under the evidence plaintiffs were not entitled to recover what they claimed to have expended in employing detectives.

The judgment of the municipal court of Chicago is reversed, and judgment will be entered here in favor of the plaintiffs and against defendant for $442.83.

' Reversed and judgment here for $442.83.

McSurely and Hatchett, JJ,, concur.