text:
    Minnie H. Case, Appellant, v. Louis W. Guise and Alberta S. Guise, Appellees.
    Gen. No. 9,141.
    Opinion filed January 18, 1937.
    Rehearing denied February 20, 1937.

      Walter Hamilton, of Chicago, for appellant.
    Reed & Keeney, of Naperville, for appellees; Russell W. Keeney and Gordon Moeeett, of Naperville, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

Minnie H. Case was the owner of a house and lot in Glen Ellyn, Illinois. The house was a new seven-room dwelling. She rented this house to Louis W. Guise and Alberta S. Guise, the appellees in this suit, for a monthly rental of $80. The lease was from September 1,1932, to August 31, 1933. The appellees lived in the house and paid their rent regularly for the full term of one year and then surrendered the property to the appellant. This suit was started by the appellant against the appellees for damage to the property. The appellant claims that at the time the premises were delivered to the appellees, the building was new, the floors and everything were in first-class condition; that the floors were red oak, which is a hard wood; that when the premises were surrendered to the appellant, there were numerous large and unsightly spots on the floors; that these spots could not be removed without having the floor repaired; and that the plaintiff had been damaged to the amount of $800.

The defendants filed an answer to this complaint, in which they admit the execution of the lease and occupancy of the premises until 1933. The answer denies that the damage was caused by anything that was done on their part, and alleged the damage,, if any, was caused by the negligence of the plaintiff, Minnie H. Case.

The case was heard before the court without a jury. The plaintiff introduced the lease, which was admitted in evidence. Charles H. Henry was called as a witness for the plaintiff and testified that the house in question was a new house in first-class condition, with hard wood floors throughout; that the appellees were the first tenants to occupy the house; that he visited the premises several times during the year, and that the appellees were occupying the house; that one or two days after the appellees had vacated the house, he went inside and found numerous unsightly spots on the hard wood floors; that at the time the premises were delivered to the appellees, at the beginning of their lease, the same floors were unspotted; that an effort had been made to remove these unsightly spots, but the same could not be done. Other witnesses were called to testify in regard to the spots and the efforts which were made to remove them. They all testified that the spots could not be removed and a part of the flooring* would have to be replaced. The trial court has certified to this court two exhibits which consist of parts of the floor in the living* room in the house, the larger one of which shows two unsightly spots. Some of their testimony as to what it would cost to repair this floor is competent and some not competent.

At the close of the plaintiff’s case, the defendants entered a motion for the court to find the issues in favor of the defendants and dismiss the plaintiff’s suit. The court sustained this motion, and entered judgment in favor of the defendants, assessed the costs of suit against the plaintiff and dismissed the suit. From this judgment the appeal is prosecuted.

From a review of the evidence, it is our conclusion that the plaintiff’s evidence shows that at the time the house was delivered to the appellees under the written lease, the same was in good condition and the floor free from spots and blemishes; that at the time, or a day or two after the appellees vacated the house, the floors were covered with unsightly spots,* that plaintiff proved by competent evidence, that they had sustained substantial damages.

The question then arises, Did the plaintiff make out a prima facie case so that it was incumbent upon the defendants to produce evidence to rebut this presumption? The lease, which is in the usual form, provides that the second party, which is here the appellees, have examined and know the condition of the premises. Part of the lease is as follows: ‘ ‘ That he has examined and knows the condition of said premises; he has received the same in good repair and order; that he will keep said premises in good repair during the term of this lease at his own expense; and upon the termination of this lease will yield up said premises to the said party of the first part, in good condition and repair, loss by fire ordinary wear excepted.” This lease was under seal.

The leading case on the burden of proof in such cases is Cumins v. Wood, reported in 44 Ill. 416. The syllabus is as follows: “In case of a bailment for hire, as well as when the bailment is gratuitous, where it appears the goods, when placed in the hands of the bailee, were in good condition, and they were returned ■ in a damaged state, or not returned at all, in an action by the bailor against the bailee, the law will presume negligence on the part of the latter, and impose on him the burden of showing he exercised such care as was required by the nature of the bailment. ’ ’ An examination of Shepherd’s Illinois, 1936, Citator discloses that this case has been cited with approval 42 times.

We think that the Supreme Court has stated the true rule more clearly in the case of Miles v. International Hotel Co., found in 289 Ill. 320, at page 327, where they say: “The weight of modern authority holds the rule to be that where the bailor has shown that the goods were received in good condition by the bailee and were not returned to the bailor on demand the bailor has made out a case of prima facie negligence against the bailee, and the bailee must show that the loss or damage was caused without his fault. (Cumins v. Wood, 44 Ill. 416; Schaefer v. Safety Deposit Co., supra.) The effect of this rule is, not to shift the burden of proof from plaintiff to the defendant, but simply the burden of proceeding. The bailor must in all instances prove that the bailee was negligent, but when she shows that the goods which she intrusted to the bailee’s care were not delivered upon demand she has made out a prima facie case or created a presumption of negligence which the bailee may overcome by offering evidence to show that it was not negligent, and if it produces such evidence, the bailor, in order to make out her case, must show that the bailee was, in fact, negligent and that its negligence caused the loss or contributed thereto.” This same rule is adhered to in the cases of Byalous v. Matheson, 328 Ill. 269, and O’Meara Const. Co. v. Meltzer, 283 Ill. App. 654 (Abst.).

We think that the rule as thus laid down governing the law of bailments is equally applicable to leases. Webster Unabridged Dictionary states that in the Roman law, early English law, the term “Bailment” was used for both land and chattels.

The Appellate Court of the First District, in the case of Peck v. Scoville Mfg. Co., 43 Ill. App. 360, passed upon a suit by a landlord to recover damag’es from a tenant for breaking windows. The lease contained a similar clause to the lease we have been considering in this case and the court says: ‘ ‘ The burden of proving that the window was broken by an inevitable accident was on the appellee; this, it failed to do.” In Rustad v. Lampert, 149 Minn. 363, 183 N. W. 843, where the Peck case was cited with approval and followed, they say: “The plaintiff made out a prima facie case when she proved the premises were surrendered in a damaged condition. It was then encumbent on the defendant if he would avoid liability to prove that the damage was due to the excepted cause. ’ ’ Underhill, Landlord and Tenant, section 53; Peck v. Scoville Mfg. Co., supra. The same rule was announced by the Supreme Court, Appellate Division, Second Department, State of New York in Taylor v. Campbell, 123 App. Div. 698, 108 N. Y. S. 399.

The appellees, in their brief, cite cases which they contend sustain their argument that the plaintiff did not make out a prima facie case, but these cases do not support their contention. We have been unable to find any case that enunciates different rules from those which our Appellate and Supreme Court have given. It is our conclusion that the appellant made out a prima facie case at the time of the trial, and that the court erred in entering a judgment for the defendants and dismissing the plaintiff’s suit.

The judgment of the circuit court of DuPage county is hereby reversed and the cause remanded.

Reversed and the cause remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Matehett

license: Public Domain

text:
    First District.
    Central Illinois Company et al., appellants, v. Sears, Roebuck and Company, appellee.
    Gen. No. 39,095.
    Opinion filed January 4, 1937.
    Boss & Watts, for appellants;
    Wadsworth Watts and Melvin A. Hardies, of counsel.
    Lederer, Livingston, Kahn, Adler & Adsit, for appellee;
    Sigmund Livingston and Archie Siegel, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    Sam Blum, appellant, v. Provident Mutual Life Insurance Company of Philadelphia, appellee.
    Gen. No. 37,725.
    Opinion filed January 4, 1937.
    McKinley & Wagner and Harry L. Yale, for appellant;
    A. A. McKinley, of counsel.
    Mayer, Meyer, Austrian & Platt, for appellee;
    Miles G. Seeley, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Nellie Scully, appellee, v. Guy A. Richardson et al., appellants.
    Gen. No. 39,085.
    Opinion filed January 4, 1937.
    Rehearing denied January 18, 1937.
    Frank L. Kriete, O. C. Cunningham and Arthur J. Donovan, for appellants;
    John R. Guilliams, of counsel.
    Royal W. Irwin, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    L. E. Seitz, appellant, v. Edward P. Allison Company, Inc., appellee.
    Gen. No. 39,122.
    Opinion filed January 4, 1937.
    Anderson & Clarke, for appellant.
    Cummings & Wyman, for appellee;
    Austin L. Wyman, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Minnie D. Chevlen, administratrix of the estate of Samuel S. Chevlen, deceased, plaintiff, v. Morris Morrison et al., defendants. Sam Blum, appellant, v. Provident Mutual Life Insurance Company of Philadelphia, appellee.
    Gen. No. 39,155.
    Opinion filed January 4, 1937.
    Rehearing denied January 18, 1937.
    McKinley & Wagner and Harry L. Yale, for appellant;
    A. A. McKinley, of counsel.
    Mayer, Meyer, Austrian & Platt, for appellee;
    Miles G. Seeley, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    The People of the State of Illinois ex rel. Charles H. Borden and Irving J. Solomon, appellees, v. Village of Forest Park et al., appellants.
    Gen. No. 38,875.
    Opinion filed January 4, 1937.
    Rehearing denied January 18, 1937.
    William McKinley, for appellants;
    Paul E. Price, of counsel.
    David J. Shipman, for appellees.
    Charles H. Borden, pro se.

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Alvin Meyer, appellee, v. Chicago Great Western Railroad Company, appellant.
    Gen. No. 39,007.
    Opinion filed January 4, 1937.
    Rehearing denied January 18, 1937.
    Winston, Strawn & Shaw, for appellant;
    Harold A. Smith and Theodore Tieken, of counsel.
    Guy C. Guerine, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Charles Martinken, appellee, v. Trans-American Freight Lines, Inc., appellant.
    Gen. No. 39,030.
    Opinion filed January 4, 1937.
    Edward W. Rawlins and James P. Wright, for appellant.
    Martin J. McNally, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    John Ratlawski, appellee, v. Casimir Dyniewicz et al., defendants, on appeal of L. A. Weiss, appellant.
    Gen. No. 39,274.
    Opinion filed January 18, 1937.
    Harold 0. Mulks, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    In re Estate of James Thomas Kelly, deceased. The People of the State of Illinois, defendant in error, v. Bella Butman, plaintiff in error.
    Gen. No. 38,269.
    Opinion filed January 27, 1937.
    Wm. Scott Stewart, for plaintiff in error;
    Charles R. Aiken, of counsel.
    Levinson, Becker, Peebles & Swiren, as amioi cmrice;
    Don M. Peebles and H. M. Neuburger, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of

the court.


text:
    Michael Sekela and Susie Sekela, appellees, v. Bernice Tokarz, appellant.
    Gen. No. 38,949.
    Opinion filed January 27, 1937.
    L. A. Sherwin, for appellant.
    Charles Ralph Johnston and John A. Kahoun, for appellees.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    Sefcik Dairy Company et al., appellees, v. John Jurca, trading as Turner Dairy, defendant. John Jurca and Steve Jurca, appellants.
    Gen. No. 38,142.
    Opinion filed January 27, 1937.
    Rehearing denied February 16, 1937.
    Grablowski & Kanak, for appellants.
    Gann, Seeord & Stead, for appellees;
    Loy N. McIntosh and John H. Boord, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    In re Estate of James Thomas Kelly, deceased. The People of the State of Illinois, defendant in error, v. John J. Bagdonas, plaintiff in error.
    Gen. No. 38,237.
    Opinion filed January 27, 1937.
    Wm. Scott Stewart, for plaintiff in error;
    Charles R. Aiken, of counsel.
    Levinson, Becker, Peebles & Swiren, as amioi owrice-,

    Don M. Peebles and H. M. Neuburger, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Joseph F. Sanders, appellant, v. W. W. McCallum, appellee.
    Gen. No. 38,698.
    Opinion filed January 27, 1937.
    John A. Bloomingston, for appellant.
    Murphy 0. Tate, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr, Justice Hall

text:
    Chicago Title and Trust Company, appellee, v. Emanuel Z. Swimmer et al., defendants, on appeal of Morris Cohn, appellant.
    Gen. No. 38,732.
    Opinion filed January 27, 1937.
    Henry Pollens, for appellant.
    Isaac S. Rothschild, for appellee.
   Mr, Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    Nellie I. Fender and Francis R. Fender, appellants, v. Ira N. Fender et al., appellees.
    Gen. No. 38,735.
    Opinion filed January 27, 1937.
    Brown, Brown & Winkler, for appellants.
    Wm. Annan Taylor and
    Henry J. Scarry, for appellees.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Florence E. Hirt, appellant, v. A. J. Schanfarber, appellee.
    Gen. No. 38,784.
    Opinion filed January 27, 1937.
    Teller, Levit, Silvertrust & Levi, for appellant.
    Sidney J. Wolf and J. Robert Cohler, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Bernard M. Stone, plaintiff in error.
    Gen. No. 39,024.
    Opinion filed January 27, 1937.
    Cohen, Tomas & Cohen, for plaintiff in error;
    George B. Cohen, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error;
    Edward E. Wilson, John T. Gallagher, Richard H. Devine and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    George Mallek, a minor, by Antoinette Sherman, his next friend and mother, appellee, v. Albert J. Stults, appellant.
    Gen. No. 39,010.
    Opinion filed February 1, 1937.
    Rehearing denied February 15, 1937.
    George C. Bliss, for appellant.
    Luster & Luster, for appellee; Max Luster, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Presiding Justice Matchett

text:
    Ernest J. Kruetgen et al., appellants, v. General Outdoor Advertising Company et al., appellees.
    Gen. No. 39,129.

      Opinion filed February 1, 1937.
    Rehearing denied February 15, 1937.
    Elder, Pedderson & We del, for appellants;
    Edgar B. Elder and John E. Pedderson, of counsel.
    Sanders, Childs, Bobb & Weseott, for certain appellees.
    Barnet Hodes, Corporation Counsel, and Leo V. Boeder, Assistant Corporation Counsel, for certain other appellees;
    William L. Bourland, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Robert A. Morrey, appellant, v. Frederick H. Bartlett, appellee.
    Gen. No. 39,149.
    Opinion filed February 1, 1937.
    John Van Natta, for appellant.
    Foreman, Bluford, Krinsley & Schultz, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Signe Moustis, appellee, v. James Moustis, appellant.
    Gen. No. 39,158.
    Opinion filed February 1, 1937.
    Rehearing denied February 15, 1937.
    Either & Either, for appellant.
    Maurice L. Davis, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    In re Estate of Louis B. Cohen, deceased. Petition of Bernard Cohen, appellee, v. Sara Cohen, appellant.
    Gen. No. 39,026.
    Opinion filed February 1, 1937.
    Louis S. Gibson, for appellant.
    Harold A. Fein, for appellee;
    Mordi R. Kallick, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    John Jacobson, appellee, v. Herbert F. Philipsborn and R. C. Philipsborn, trading as H. F. Philipsborn and Company, and Otoe Corporation, appellant.
    Gen. No. 39,061.

      Opinion filed February 1, 1937.
    Rehearing denied February 15, 1937.
    Stearns & Jones, for appellant;
    Lloyd M. McBride, of counsel.
    Heile, Cavender, Milchrist & Kaiser, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    James W. Svantner et al., appellants, v. Prudential Insurance Company of America, appellee.
    Gen. No. 39,102.
    Opinion filed February 1, 1937.
    Stebbins, McKinley & Price, for appellants;
    William McKinley and Paul E. Price, of counsel.
    Hoyne, O’Connor & Rubinkam, for appellee;
    Nathaniel Rubinkam and William S. Allen, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    F. H. Andersen, trading as F. H. Andersen Decorating Company, appellee, v. Mrs. Nathan Hymen and Hymen and Stenhouse, Inc., appellants.
    Gen. No. 39,143.
    Opinion filed February 1, 1937.
    Philip A. Weinstein, for appellants.
    Samuel A. and Leonard B. Ettelson, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    The Northern Trust Company, appellee, v. William J. Bridgman et al., on appeal of William J. Bridgman et al., appellants.
    Gen. No. 39,017.
    Opinion filed February 1, 1937.
    Rehearing denied February 15, 1937.
    Cutting, Moore & Sidley, for appellants;
    Merritt C. Bragdon and Middleton Miller, of counsel.
    Bottom, Hudnall, Lecher, Michael & Whyte, for certain appellees;
    Robert McCurdy, of counsel.
    Arthur Abraham, guardian a<i litem.

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Henry Miles, appellant, v. City of Chicago et al., appellees.
    Gen. No. 38,115.
    Opinion filed February 1, 1937.
    Tale So Yale, for appellant;
    Bernard Yale, of counsel.
    Barnet Hodes, Corporation Counsel, Quin O’Brien and Carl Hjalmar Lundquist, Assistant Corporation Counsel, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Schoenhofen Edelweiss Company, appellee, v. Armin G. Kusswurm, appellant.
    Gen. No. 39,146.
    Opinion filed February 1, 1937.
    Armin G. Kusswurm, pro se.

    Marcus L. Silver, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    W. S. Miller, appellee, v. American Motorists Insurance Company, appellant.
    Gen. No. 39,152.
    Opinion filed February 1, 1937.
    Rehearing denied February 15, 1937.
    F. J. Hurley, for appellant.
    John D. Pope, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice John J. Sullivan

text:
    The Amico Company, Inc., appellant, v. Joe Zarovsky et al., defendants. Advance Laundry Machinery and Supply Company, appellee.
    Gen. No. 38,574.
    Opinion filed February 9, 1937.
    Rehearing denied February 23, 1937.
    Isidore Vise and Lewis Bennett, for appellant.
    Charles T. Kramer and William B. Spar, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    The Lincoln National Life Insurance Company, appellee, v. Florian Vodnik et al., defendants. The Petersen Oven Company, appellant.
    Gen. No. 38,657.

      Opinion filed February 9, 1937.
    McDonald & Richmond, for appellant;
    Lyle L. Richmond, of counsel.
    Bull, Lytton & Olson, for appellee;
    Norman A. Broholm, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Mary C. Kretzmann and Janet Michaelson, appellants, v. American Development Company and Andrew Bartoli, Jr., appellees.
    Gen. No. 38,673.
    Opinion filed February 9, 1937.
    Wendell H. Shanner, for appellants;
    Charles V. Laughlin, of counsel.
    W. Harold Rutherford, for appellees;
    Richard E. Keogh and Auguste C. Babize, Jr., of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Albert Peterson et al., appellants, v. Jason B. Evans et al., appellees.
    Gen. No. 38,692.
    Opinion filed February 9, 1937.
    Rehearing denied February 23, 1937.
    Kremer, Bran and & Hayes, for appellants.
    Martin J. McNally and A. C. Lewis, for appellees.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Virginia W. Hawkins, appellant, v. Willard Trice Hawkins, appellee.
    Gen. No. 38,859.
    Opinion filed February 9, 1937.
    Alex H. Rosenbaum, for appellant.
    Everett Jennings, for appellee; Edward M. Keating, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    Charles E. Fowler et al., appellees, v. Hi-Lo Fan Corporation et al., defendants, on appeal of Hi-Lo Fan Corporation et al., appellants.
    Gen. No. 38,562.
    Opinion filed February 9, 1937.
    Henry Gifford Hardy and Whitman Taylor, for appellants.
    Louis P. Miller, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Central Fuel Corporation, appellant, v. Leslie W. Beaven, appellee.
    Gen. No. 38,915.
    Opinion filed February 9, 1937.
    Francis M. Lowes, for appellant.
    Brenner & McBride, for appellee;
    Thomas G. McBride, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Arthur S. Kahn and Company, appellant, v. Margaret L. Redmond and Richard A. Redmond, appellees.
    Gen. No. 38,940.
    Opinion filed February 9, 1937.
    Poppenhusen, Johnston, Thompson & Raymond, for appellant;
    Frederick Mayer, of counsel.
    No appearance for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Emily Magnuson, appellee, v. Della Jechort, appellant.
    Gen. No. 39,198.
    Opinion filed February 9, 1937.
    Rehearing denied February 23, 1937.
    Robert D. Meliek, for appellant.
    Ivan Barton Goode, for appellee;
    George A. Gordon, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    A. L. Schiff, appellee, v. J. A. Peck and Katie Peck, appellants.
    Gen. No. 39,253.
    Opinion filed February 9, 1937.
    Ellis & Westbrooks, for appellants;
    Richard E. Westbrooks and Edward M. Byrd, of counsel.
    No appearance for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    Eli Metcoff, appellee, v. The First National Bank of Chicago et al., defendants. The First National Bank of Chicago, appellant.
    Gen. No. 38,390.
    Opinion filed February 9, 1937.
    Winston, Strawn & Shaw and Amberg, Ott, Dahlia & Livingston, for appellant;
    John 0. Slade, Harold Beaeom, Charles J. Calderini and Frank L. Paul, of counsel.
    Shulman, Shulman & Abrams, for appellee;
    Meyer Abrams, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Rock-Ola Manufacturing Corporation, appellee, v. Genco, Inc., et al., appellants.
    Gen. No. 38,418.

    Opinion filed February 9, 1937.
    Rehearing denied February 23, 1937.
    Folsom, Gross & Lee and Sidney A. Burnstein, for appellants.
    Mclnerney, Epstein & Arvey, for appellee;
    John L. Melnerney and Louis M. Mantynband, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Polish Roman Catholic Union of America, appellee, v. Walter Doenges et al., defendants. Marion Marvin, appellant. Marion Marvin, individually and as administrator of the estate of Teodor Zamiara, deceased, appellant, v. Polish Roman Catholic Union of America and City of Chicago, appellees.
    Gen. No. 38,633.
    Opinion filed February 9, 1937.
    Rehearing denied February 23, 1937.
    John E. McCoy, for appellant;
    Richard T. Tobin and Henry P. Heizer, of counsel.
    Chester J. Danlcowski, for certain appellee;
    Joseph F. Elward, of counsel.
    Barnet Hodes, Corporation Counsel, Joseph F. Grossman and Arthur A. Sullivan, Assistant Corporation Counsel, for certain other appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Edward J. Morrissey and Marie S. Morrissey, appellees, v. Bessie Luhan, appellant.
    Gen. No. 38,791.
    Opinion filed February 9, 1937.
    Joseph G. Porter and Arthur Abraham, for appellant.
    Gilmore, Hendricks & Cullen, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    James M. Harris, appellant, v. Melville J. Kolliner et al., appellees.
    Gen. No. 38,922.
    Opinion filed February 9, 1937.
    Rehearing denied February 23, 1937.
    Joseph E. Snowden and Heber T. Dotson, for appellant;
    Heber T. Dotson, of counsel.
    Benjamin F. Cohn, for appellees;
    Sidney D. Missner, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Huffman

text:
    Second District.
    William L. O’Connell, appellant, v. George Erickson, appellee.
    Gen. No. 9,131.
    Opinion filed January 18, 1937.
    Rehearing denied February 20, 1937.
    George V. B. Weeks, for appellant.
    Butters & Butters and John H. Armstrong, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    George W. Pyott, appellee, v. Samuel Kahn, appellant.
    Gen. No. 9,140.
    Opinion filed January 18, 1937.
    D’Ancona, Pflaum & Kohlsaat, for appellant.
    Floyd E. Eckert and Arthur G. Waite, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Nettie White, appellant, v. Fidelity Mutual Benefit Association, appellee.
    Gen. No. 9,142.
    Opinion filed January 18, 1937.
    Stanley H. Guyer, for appellant.
    Hall & Dusher, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Harold Cadman, appellant, v. School Directors of School District No. 14, Winnebago County, appellee.
    Gen. No. 9,147.
    Opinion filed January 18, 1937.
    Ryan & Hood, for appellant.
    Lathrop, Lathrop, Brown & Lathrop,for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Ross Andrews, appellant, v. J. S. Lawrence, appellee.
    Gen. No. 9,157.

      Opinion filed January 18, 1937.
    Rehearing denied February 20, 1937.
    DeGoy B. Ellis and Paul M. Hamilton, for appellant.
    Rathje, Hinckley, Barnard, Kulp & Tucker, for appellee;
    Charles D. Page, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    Raymond Pregenzer, appellee, v. Lillian A. Rothers, appellant.
    Gen. No. 9,110.
    Opinion filed January 18, 1937.
    Brown, Gembick, Winkler & Kiesow, for appellant;
    A. K. Gembick and R. C. Winkler, of counsel.
    Runyard & Behanna, for appellee;
    Eugene M. Runyard and Daniel J. Dalziel, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Vito Buffa, administrator of the estate of Franklin Donald Buffa, deceased, appellant, v. Louis Blank, appellee.
    Gen. No. 9,121.
    Opinion filed January 18, 1937.
    J. E. Goembel and B. J. Knight, for appellant;
    Perley T. Lupton, of counsel.
    Welsh & Welsh and Gillespie, Burke & Gillespie, for appellee; Louis F. Gillespie, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Kathryn Erickson, by Thorsten Erickson, her father and next friend, and Thorsten Erickson, appellees, v. Central Illinois Electric and Gas Company, appellant.
    Gen. No. 9,124.
    Opinion filed January 18, 1937.
    Hall & Dusher, for appellant. Hyer & Gill,, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Hanna Bechtel, appellee, v. Jeff Rocke et al., appellees. William E. Gibson, appellant. Byron L. Colburn and Farmers State Bank of Eureka, cross appellants.
    Gen. No. 9,136.

      Opinion filed January 18, 1937.
    George Jochem, for appellant.
    George W. Hunt and W. H. Poster, for cross appellants.
    Richard H. Radley and Ren Thurman, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Dr. F. J. Otis, appellant, v. Mrs. Roberta Briar and T. S. Craig, appellees.
    Gen. No. 9,139.
    Opinion filed January 18, 1937.
    Edward J. Turnbaugh and Bertrand C. Schuemann, for appellant.
    Wood So McNeal, for certain appellee;
    H. Hunter Gehlbach, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Arthur T. Saltzgiver, executor of the last will and testament of Frank Saltzgiver, deceased, appellant, v. William McGrath et al., appellees.
    Gen. No. 9,155.
    Opinion filed January 18, 1937.
    Luther B. Bratton, for appellant.
    Vernon G. Butz, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Harlow H. Belding, appellant, v. Edith L. Belding, individually and as administratrix of the estate of Wilbert D. Belding, deceased, et al., appellee.
    Gen. No. 9,161.
    Opinion filed January 18, 1937.
    George W. Thoma, for appellant;
    Francis L. Zimmermann and Herbert A. Grotefeld, of counsel.
    Walter E. Moss, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Louis Smith, appellee, v. Illinois Power and Light Corporation, appellant.
    Gen. No. 9,102.

      Opinion filed January 18, 1937.
    B. Bentley Hamilton, for appellant.
    Ren Thurman, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Pure Milk Association, appellee, v. Joseph Wagner, Sr., et al., appellants.
    Gen. No. 9,113.
    Opinion filed January 18, 1937.
    Rehearing denied February 20, 1937.
    Czarnecki, Grablowski & Kanak, for appellants.
    Martin Burns and Russell W. Keeney, for appellee;
    Donald Kirkpatrick and Gordon Moffett, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Lena Muller, appellee, v. Louis Rich, appellant.
    Gen. No. 9,118.
    Opinion filed January 18, 1937.
    Eli D. Langert and Bell, Farrar & Scott, for appellant;
    Earl L. Scott and Eli D. Langert, of counsel.
    George C. Wenger, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Charles A. Harvey, appellant, v. Price Dean, appellee.
    Gen. No. 9,123.
    Opinion filed January 18, 1937.
    W. E. Viner, for appellant.
    H. B. Smith, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Frances T. Male, as administratrix of the estate of Frances A. Lovegran, deceased, and as executrix of the last will and testament of Godfrey T. Lovegran, deceased, appellee, v. City of Rockford, appellant.
    Gen. No. 9,137.
    Opinion filed January 18, 1937.
    Rehearing denied February 20, 1937.
    Charles S. Thomas, Corporation Counsel, and Alf O. Ahlstrand, City Attorney, for appellant.
    John R. Snively, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Kewanee State Savings Bank and Trust Company, complainant, v. Warren E. Green, et al., defendants. William L. O’Connell, appellant, v. Elizabeth Green O’Neill et al., appellees.
    Gen. No. 9,146.
    Opinion filed January 18, 1937.
    James H. Andrews, Gregg A. Young and Harper Andrews, for appellant;
    D. A. Skalitzky, of counsel.
    Thomas J. Welch and Vera M. Binks, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Anthony Durka and Mary Durka, appellees, v. Anton Wypych and Mary Wypych, appellants. Anton Wypych and Mary Wypych, appellants, v. Anthony Durka and Mary Durka, appellees.
    Gen. No. 9,152.
    Opinion filed January 18, 1937.
    Gerald C. Snyder, for appellants.
    Werner W. Schroeder, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Nels P. Rasmussen, appellant, v. Catherine Rasmussen, appellee.
    Gen. No. 9,159.
    Opinion filed January 18, 1937.
    Rehearing denied February 20, 1937.
    Robert W. Besse and Sheldon & Brown, for appellant.
    Edward E. Wingert, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr, Justice Dove

text:
    The People of the State of Illinois ex rel. Arthur L. Betourne, appellee, v. City of Kankakee et al., appellants.
    Gen. No. 9,145.
    Opinion filed February 8, 1937.
    T. R. Johnston and Victor N. Cardosi, for appellants.
    Noel A. Diamond, for appellee.
   Mr, Justice Dove

delivered the opinion of the court.


author: Mr. Presiding Justice Fulton

text:
    Third District.
    S. J. Buckner et al., appellees, v. Morris Bros. Shoe Company et al., appellants.
    Gen. No. 8,966.
    Opinion filed January 15, 1937.
    Rehearing denied April 6, 1937.
    Lancaster & Nichols and Paul S. Schmid, for appellants.
    John E. Wall, Patrick H. Cullen and Cullen Coil, for appellees.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    Federal Band Bank of St. Louis, appellee, v. William J. Leinweber et al., appellants.
    Gen. No. 9,001.
    Opinion filed January 15, 1937.
    J. W. Templeman, for appellants.
    Tlieo. E. Kireher, Lovell George and Fletcher C. Ransom, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    Flora B. Dorrah, plaintiff in error, v. Orlo Jordan, defendant in error.
    Gen. No. 9,007.
    Opinion filed January 15, 1937.
    S. H. Cummins, for plaintiff in error.
    Hershey & Bliss, for defendant in error.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    Joseph F. Bohrer and Charles J. Werner, appellees, v. John M. Wohldorf, appellant.
    Gen. No. 9,013.
    Opinion filed January 15, 1937.
    Whitmore & Whitmore, for appellant.
    James A. Light, guardian ad litem. Charles M. Peirce, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    Charles B. Switzer, appellee, v. Elden C. Henry, appellant, and Jesse Johnson, defendant.
    Gen. No. 9,025.
    Opinion filed January 15, 1937.
    IAndley, Paeey & Johnson, for appellant.
    M. H. Scott, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


author: Mr. Justice Davis

text:
    Arthur F. Lee, appellant, v. Nondas L. Lee, appellee.
    Gen. No. 9,002.
    Opinion filed January 15, 1937.
    Rehearing denied April 6, 1937.
    A. M. Fitzgerald and H. F. Simonson, for appellant.
    C. R. Iungerieh, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Neal D. Reardon, executor of the last will and testament of Francis Gerald Griffin Reardon, deceased, appellant, v. Abraham Lincoln Life Insurance Company, appellee.
    Gen. No. 9,010.
    Opinion filed January 15, 1937.
    Rehearing denied April 6, 1937.
    Neal D. Reardon, for appellant.
    H. E, Fullenwider, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Anna Dachroth, appellee, v. William C. Reimbold, appellant. Earl C. Main, defendant.
    Gen. No. 9,020.
    Opinion filed January 15, 1937.
    Rehearing denied April 6, 1937.
    Harry Lawrence and Cavanagh, Lamet & Irwin, for appellant.
    O'Harra, O’Harra & Roeth and John W. Williams, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Harold E. Pinnell, appellee, v. O. L. Langellier, trading as Langellier Motor Company, appellant, and Everett K. Brooker, defendant.
    Gen. No. 9,026.

      Opinion filed January 15, 1937.
    Rehearing denied April 6, 1937.
    Covey & Woods, for appellant.
    Harold P. Trapp, Harold P. Trapp, Jr., and Clarence'W. Heyl, for appellee;
    Hudson Ralph Sours, of counsel.
   Mr. Justice Davis

delivered the opinion of the court.


author: Mr. Justice Riess

text:
    J. Wilbur Lupton, administrator of the estate of Lowell Gene Lupton, deceased, appellee, v. H. A. Bonser, appellant.
    Gen. No. 9,004.
    Opinion filed January 15, 1937.
    Hogan & Coale, for appellant;
    Scott Hoover, of counsel.
    John J. Baker, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.


text:
    Charles Elmer Phillips, appellee, v. The Travelers Insurance Company, Hartford, Conn., appellant.
    Gen. No. 9,012.
    Opinion filed January 15, 1937.
    Rehearing denied April 6, 1937.
    Provine & Williams and Amos M. Pinkerton, for appellant.
    Monroe & Allen, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.


text:
    Nelson Weber, trading as Weber’s Garage, appellee, v. Interstate Dispatch, Inc., appellant.
    Gen. No. 9,017.
    Opinion filed January 15, 1937.
    Hodges & Tragethon, for appellant.
    Gerald G. Ginnaven, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.


text:
    Lillian Young, appellee, v. United Cab and Drivurself, Inc., trading as Yellow Cab Company, and Peter Palmisano, appellants.
    Gen. No. 9,035.

      Opinion filed January 15, 1937.
    A. J. B.. Showalter and E. B. Leonard, for appellants.
    O. E. Keller and Busch & Harrington, for appellee;
    William L. Springer, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.


text:
    White Way Electric Sign and Maintenance Company, Appellee, v. Chicago Title and Trust Company, et al., Appellants.
    Gen. No. 38,887.
    Opinion filed February 9, 1937.
    Rehearing denied February 23, 1937.
    Krinsky, Levitan & Glassner, of Chicago, for appellants ; Moses Levitan, of counsel.
    Payton J. Tuohy, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

White Way Electric Sign and Maintenance Company, as plaintiff, sued out of the municipal court a writ of replevin against the Princess-Clark Theatre Corporation, Chicago Title & Trust Company and Jack M. Franks, to, recover possession of certain equipment and appliances constituting part of a canopy and sign built and installed by plaintiff in the Princess Theatre Building, Chicago. After the bailiff had taken possession of the replevied property under the writ, the trustees of the estate of Jacob Franks, deceased, owners of the Princess Theatre Building, intervened and filed an answer averring that plaintiff was not the owner of the property seized under the writ, that the property constituted part of the real estate known as the Princess Theatre Building and was an essential part of, and necessary for, the operation of the building. Upon trial the court found the right to possession of all property described in the replevin writ in plaintiff, and owners of the real estate and lessors under the lease to the Princess-Clark Theatre Corporation, have prosecuted this appeal.

The essential facts disclose that May 11, 1934, Princess-Clark Theatre Corporation was in possession of the building* known as the Princess theatre, 317-319 South Clark street, Chicago, as lessee, under a lease with Chicago Title & Trust Company and the trustee's under the last will and testament of Jacob Franks, deceased, owners of the freehold. The lease provided that the lessee should at its own expense erect “a steel canopy from the front of the demised premises to the street,” and install all necessary sound equipment, projection booth, attraction board, and any and all other equipment necessary for the operation of a motion picture theatre; that as soon after the commencement of the lessee’s occupancy as possible, a list of all necessary equipment should be submitted to the lessors, together with plans and specifications for the specific work contemplated, and that the lessors’ written approval thereto should be procured before commencement of any work; that the lessee should, after accepting contracts for installation of equipment as provided in the lease, deposit with the lessors “a sum of money equal to the total amounts to be paid to all of the contractors in the said contracts. The lessor shall then, only upon completion of the contractors’ obligations, including the satisfactory installation of said equipment necessary for said operation, pay to each of such contractors out of said amount so deposited with the lessor only the amount due each of said contractors under each of the said contracts.”

It was further provided that all additions and installations made in the demised premises in connection with any work specified in the lease, and especially including any and all trade fixtures and equipment to be attached to the demised premises in any manner whatsoever “or that shall be of any nature other than a clearly portable nature, and further including any and all chattels as listed on the list to be submitted to the lessor, . . . shall as of the date of such installation become a part of the real estate and/or the property of the lessor and shall remain in the demised premises at the expiration of this lease by lapse of time or otherwise.”

The theatre corporation evidently lacked funds to comply with that provision of the lease which required it to deposit with the lessors a sufficient sum to pay all the contractors employed to make the improvements and installations contemplated by the lease, and therefore in order to satisfy and protect the lessors against any claims that might subsequently be asserted against the property, it procured waivers of lien from the various contractors, including plaintiff, whose waiver of lien, dated May 11, 1930, was forthwith delivered to Jack M. Franks, lessors’ agent.

In November, 1934, the theatre corporation defaulted in the payment of its rent and other obligations under the lease and lessors recovered possession of the demised premises. Thereafter, in May, 1935, the bailiff took possession of the equipment in question under the replevin writ, and it was not until the property was seized by the bailiff that lessors were apprised of the éxistence of a conditional sales agreement between plaintiff and the theatre corporation, dated May 11, 1934. Plaintiff claims that there is unpaid and due from the theatre corporation some $4,500 for material and labor under its conditional sales contract, and that it is entitled to the possession of the property under the provisions of its sales agreement with lessee. The building in which the sign and equipment were installed by plaintiff was built for and since its erection has continuously been used as a theatre building’, and at the time the equipment was installed it was used primarily as a motion picture theatre.

As ground for reversal it is urged that:

“(1) When a building is erected for and permanently devoted to a . particular purpose, as in the case at bar for a theater, anything connected to the building for the carrying out of that purpose, as the electric sign system and its equipment in the case at bar is an integral part of the building and is to be considered as part of the realty,” and

“(2) The issuance by plaintiff to the owner of the building of a waiver of mechanic’s lien, accompanied by its complete silence on the existence of the secret conditional sales agreement with the lessee, amounted to an affirmative representation by plaintiff that the sign and equipment were part of the realty, that same was paid for, that title thereto was in the tenant, and that plaintiff claimed no right or lien thereto. Plaintiff is therefore estopped from claiming that it is not part of the realty and is removable therefrom. To permit plaintiff to enforce a secret lien would amount to a fraud on the owner of the building.”

Although the first proposition is fully and earnestly argued by counsel on both sides, and cases are cited showing the modern trend toward adjudicating fixtures as personalty where that intent can be gathered from the conduct or actions of the parties, we regard it unnecessary to enter into an extended discussion of the question, because in the view we take the case at bar presents a state of facts clearly involving the doctrine of estoppel, as urged under lessors’ second point. The theatre corporation had, under the terms of the lease, agreed to deposit a sufficient sum to pay all contractors, including plaintiff. This requirement was clearly intended to afford the lessors security against any possible lien claims that might subsequently arise. By issuing the waiver of mechanic’s lien and at the same time remaining silent as to its conditional sales contract with the theatre corporation, under which it claimed title to the equipment, plaintiff induced the lessors to waive their security under the lease and to believe that the property was paid for, that title thereto was in the lessee, and that plaintiff had no further interest therein. Obviously, if the lessors had known of the conditional sales agreement and that plaintiff had claimed a considerable balance due from the tenant, it would not have waived the provisions of the lease requiring the theatre corporation to deposit with the owners sufficient money with which to pay plaintiff. Plaintiff’s conduct in withholding these facts and in helping the tenant to mislead the owners into believing that the equipment was fully paid for, constituted fraud, and estopped plaintiff from later asserting any rights to the sign and equipment, either under "the conditional sales contract or otherwise. There is abundant authority to sustain this conclusion.

Lessors cite Jenks v. Colwell, 66 Mich. 420, as being a case in point and similar to the facts here presented. There plaintiff was the vendor, under a conditional sales contract, of machinery sold to one Thompson, a contractor, to be installed in a mill owned by defendants. Plaintiff sued in trover, and in discussing the question here involved the court said (p. 429):

“In this case defendants’ contract with Thompson was made before he purchased of plaintiffs. That contract contemplated that the machinery should be wrought into and become part of the freehold of defendants. This fact the plaintiffs knew when they sold the machinery to Thompson, and they must have contemplated this result. Any agreement, therefore, between them and Thompson, by which they were to retain the title to the property after it so became a part of the freehold in the carrying- out of his contract with defendants, would operate as a fraud upon the defendants, and make them liable as tort-feasors without any voluntary act on their part. Without giving- defendants any notice of their claim that the sale was a conditional one, or a mere lease, and all payments made should be simply for the use of the property, but, instead, guaranteeing that the property should be shipped upon defendants’ paying $500 on Thompson’s order, they induced defendants to act, and part with their money. Under these facts, it would be gross injustice for them now to claim that the title of the property did not pass to defendants under their contract with Thompson. They are estopped from asserting that Thompson had no title to the property, and no right to place it in the mill under his contract with defendants, upon the plainest principles of justice. Nor could they do this after Thompson had placed the property in the mill, although some parts of the mackinery had not been securely attached to the realty. ’ ’ Similarly, in the case at bar, by not giving the owners of the property any notice of its claim that the sale to the lessee was a conditional one, plaintiff induced the owners to permit the installation of the sign system in the building, the cutting off and making changes in the old canopy, allowed the lessee to go into possession, and to waive the provisions of the lease which were intended for their security and protection.

The doctrine of estoppel has under similar circumstances been recognized and followed in Illinois. In Brittingham & Hixon Lumber Co. v. Board of Education, 284 Ill. App. 429, the court, quoting" from Heidenbluth v. Rudolph, 152 Ill. 316, said:

“A contractor in order to maintain his mechanic’s lien for work done and material furnished, must act in good faith towards all other persons interested in the property involved, and an act on his part which would make it unjust and inequitable to enforce his lien may operate as an estoppel to its enforcement in a court of equity. ’ ’

In Springfield Marine Bank v. Marbold, 264 Ill. App. 446, in discussing the question of estoppel, the court said (p. 463) that.“estoppel may arise from silence as well as from words,” citing Oliver v. Ross, 289 Ill. 624; Lloyd v. Lee, 45 Ill. 277; Vail v. Northwestern Mut. Life Ins. Co., 192 Ill. 567.

In Robbins v. Moore, 129 Ill. 30, it was said (p. 54):

“Where the foundation of the estoppel is in silence, and omission to give notice of existing rights, the party relying on the same must not have had the means of ascertaining the true state of the title by reference to the public record, but such rule does not apply to a case where the land owner has actively encouraged and induced the injured party to act. In the latter case, the party making the declaration acted on will be es-topped, although he may have been ignorant of his true rights. The other party may rely on his representations without further inquiry, and act upon the assumption that he is cognizant of his rights, and knows the condition of his own title.”

In 26 Corpus Juris 733, sec. 16, par. 125', the author says:

“One may be estopped to claim an annexed "article as part of realty belonging to him by reason of his misleading conduct or declarations in regard thereto. Conversely, one may, by force of the doctrine of estoppel, be precluded from claiming that an article is not part of the realty or is removable' therefrom. ’ ’

In Bigelow on Estoppel, 6th ed., p. 648, the author discusses the doctrine of estoppel by silence as follows :

“As we have seen, from total but misleading silence with knowledge, or passive conduct joined with a duty to speak, an estoppel Will arise. The case must be such that it would be fair to equate the silence with a declaration of the party that he has, e. g., no interest in the subject of the transaction. Indeed, silence, when resulting in an estoppel, may not improperly be said to have left something like a representation upon the mind; for the case is this: A negotiation is going on, and the mind receives the facts brought out, and receives those facts only. Hence, everything inconsistent with them, relating to the rights of others present as well as to those of the party with whom the negotiation is going on, is excluded. The effect no doubt is negative, but the mind goes wrong because of that negative; and the silence certainly affects the matter of calculating the advantages of the proposal.” Similar enunciations on the doctrine of estoppel may be found in Brown v. Burke, 155 Ill. App. 249; Haskins v. Hesley, 152 Ill. App. 141.

Plaintiff relies principally on the recent case of National Bank of Republic v. Wells-Jackson Corp., 358 Ill. 356, where it ivas held by a divided court that a sprinkler system installed in a building used as a garage, sold under a conditional sales contract, was removable and did not become part of the realty by annexation or lose its character as personal property, as against the claim of the owner of the real estate, who upon forfeiture of the lease had taken possession of the building in which the sprinkler system was installed. The owner in that case also claimed that plaintiff was estopped from asserting title to the sprinkler installation,.but the court.held that the doctrine can only be invoked to prevent injustice or fraud, and said that “the Phillips Company did nothing to lead McKinlock to believe that the property was paid for and that the title was in his tenant.”

Inferentially it may be said that under a state of facts similar to those involved here the Supreme Court would have applied the doctrine of estoppel. All the elements defined by the authorities hereinbefore cited are present in this proceeding to justify the application of the doctrine.

We are of the opinion that the judgment entered by the trial court was erroneous, and that the right to possession of the property in question is in defendant. The judgment will therefore be reversed and the cause is remanded to the municipal court with directions to enter an order returning the property in question to defendant.

Reversed and remanded with directions.

John J. Sullivak, P. J., and Soanlaw, J., concur.


text:
    Bohumir Kryl, Appellee, v. Edward A. Pierce et al., Trading as E. A. Pierce and Company, Appellants.
    Gen. No. 38,999.
    Opinion filed February 9, 1937.
    Behearing denied February 23, 1937.

      Levinson, Becker, Peebles & Swiren, of Chicago, for appellants; Benjamin V. Becker and Don M. Peebles, of counsel.
    Moses, Kennedy, Stein & Bachrach, of Chicago, for appellee; Walter Bachrach and J. H. Oppenheim, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Bohumir Kryl brought an action at law against the brokerage firm of Edward A. Pierce & Co. to recover damages arising from the failure to sell certain securities held in his account. The cause was tried by a jury, resulting in a verdict and judgment in favor of plaintiff for $37,431.90, from which defendants appeal.

The facts, so far as they are material to the issues involved, disclose that plaintiff maintained a brokerage account with members of the firm transacting business under the name of E. A. Pierce & Co., Chicago. The securities in the account were held subject to the ordinary contractual relation between brokers and their clients. The debit balance in the account on or about July 1, 1933, was in excess of $60,000, and the securities had a market value of over $100,000. Kryl was indebted to the "receiver of the Kaspar American State Bank. Shortly before July 1, 1933, the receiver took a judgment by confession for $15,631.72 against Kryl and his wife, Mary, based upon a promissory note which had been executed by them, payable to the ■bank. Execution issued and was returned by the sheriff, “No property found.” Thereafter an affidavit for garnishment summons was filed and summons issued for service against E. A. Pierce & Co. When summons was served on July 7, 1933, Thomas Making’, manager of the Burnham Building office of E. A. Pierce & Co., notified Kryl thereof, and advised him that no further trading would be permitted in Ms account until the issue raised by the garnishment summons had been determined. Ño trades were made in the account between July 7,1933, and July 20,1933. It appears from the evidence that there was a sharp break in stock market prices generally, beginMng July 19, 1933, as a result of which E. A. Pierce & Co., pursuant to the agreement of the parties as evidenced by the margin card, sold certain of the securities held in Kryl’s account to protect his indebtedness to them.

Before these securities were sold, E. A. Pierce & Co., through its counsel, filed an answer in the garnishment proceeding, listing the securities held by them in Kryl’s account and also setting forth the amount of his debit balance. After the securities were sold a supplemental answer was filed, disclosing the sales, made, the prices received for the various items sold, and the balance remaining in the hands of the brokers. After the garnishment proceeding was heard in the superior court an order was entered approving the acts of the defendants and directing them to pay the balance remaining in the account, amounting to $6,550.03, to the clerk of the' court to be turned over to the plaintiff in the garmshment proceeding, and this payment was made.

It is first urged as ground for reversal that the verdict of the jury is not supported by the greater weight of the evidence. The only controverted issue of fact relates to the actions of the parties between the 7th of July, 1933, when garnishment summons was served, and the 19th of July, when the securities in plaintiff’s account were sold. Plaintiff contended that on frequent occasions he requested that all the securities in the account be sold; that the amount due the Kaspar American State Bank be paid, and the balance remaining, being the difference between the selling price of all the securities less the judgment, and also less the debit balance owing Edward A. Pierce & Co., be paid over to him. Defendants deny that plaintiff had ever requested the sale of his entire account and a payment of the judgment.

Three witnesses testified on behalf of plaintiff, Bohumir Kryl, his wife, Mary, and Edward A. Slott. Kryl testified in substance that he was advised of the garnishment July 7; that July 8 he requested Thomas Making, branch manager of E. A. Pierce & Co., to sell 240 shares of American Commercial Alcohol, 400 shares of Chrysler, and 300 shares of Westinghouse, the proceeds of which would have been more than sufficient to take care of the judgment; that Making, after consulting with the main office of E. A. Pierce & Co., informed Kryl that they could not comply with his instructions, suggesting at the time that Kryl wait until the following day so that Making could “see what can be done ’ ’; that July 9 Making again informed plaintiff that they would not -sell the shares of stock mentioned, and Kryl then asked him to sell the entire account and take care of the judgment so that he could trade with the balance of his equity. Making again called the main office, and after a telephone conversation advised Kryl that absolutely no stocks could be sold until August 2, when the garnishment proceeding was to come on for hearing in court. Kryl stated that he was in the branch office of E. A. Pierce & Co. every day thereafter, up to and including July 19, and made repeated requests upon Making to sell the entire account and take care of the judgment, and that at the opening of the market on July 19 he ag’ain ordered E. A. Pierce & Co. to sell the entire account, stating to Making that “if you do not sell so that I save some money, you will ruin me”; that notwithstanding the repeated statements of the brokers that they could not sell any stocks in the account before. August 2, when the market began to break July 20 and 22, they sold Kryl’s account without any order of court.

Evidence was introduced to show that the market was fairly steady between July 7 and 19, and that if Kryl’s orders had been carried out and a sale made there would have been sufficient funds to satisfy the judgment in full, with a balance over to Kryl of $24,512, free and clear of all claims of E. A. Pierce & Co. and of Kryl’s judgment creditor, whereas by refusing to sell, Kryl’s entire equity was wiped out with the exception of $6,550.03, which was turned over to the clerk of the court for his benefit and when applied to the judgment of Kaspar American State Bank left him still owing $9,081 on the balance of the bank’s judgment.

Mary Kryl testified that she knew Mr. Making of E. A. Pierce & Co.; that she accompanied her husband to the broker’s office almost every day during the month of July, 1933, and overheard a conversation between Kryl and Making on July 19, wherein Kryl requested Making to sell the entire account so that he could pay the judgment and open a new account, but that Mailing said his office would not allow him to do so. She also stated that she heard similar conversations on numerous occasions subsequent to the service of the garnishment summons.

Dr. Slott was offered as a disinterested witness to corroborate the testimony of plaintiff and his wife, and testified that he also was present in the office of E. A. Pierce & Co., practically every day during the month of July, 1933; that he saw Kryl there and heard him request Making to sell out the stocks in his account, but that Making said he could not possibly do so without an order from the main office; that Kryl became upset when the market was breaking July 20 and thereafter, and told Making that the refusal of the brokers to sell his account had resulted in his ruin, and that Making had better sell the stocks so that he could save some of his equity, and that Making replied, “that is not up to me.”

It is apparent from the testimony of Winthrop Smith, one of the resident partners of E. A. Pierce & Co., that he had consulted with attorneys shortly after the garnishment summons was served, as to the legality of selling out Kryl’s entire account and retaining sufficient funds to satisfy the judgment. If Kryl had not requested that this be done, it is difficult to understand why they should have sought advice on the subject. Making was the only witness produced by defendants to contradict the statements of Kryl, his wife and Dr. Slott. The jury evidently accepted plaintiff’s version of the controversial facts. They had the opportunity of observing the witnesses presented, and it was their function to pass upon the credibility of these witnesses in arriving at the facts. Since the cause was fairly tried and no complaint is made as to the admissibility of evidence or the charge to the jury on questions relating to the determination of facts, we are not disposed to disturb the judgment on the ground that the verdict is not supported by the greater weight of the evidence.

The remaining point assigned for reversal is that the service of garnishment summons created a lien on the goods in the possession of the garnishee defendants belonging to the original defendant in execution, by reason whereof it became the duty of the garnishee defendants, after service of summons, to retain the identical property until the order of court thereafter entered. This presents a purely legal question involving a determination of the rights and duties of one named as defendant in a garnishment proceeding, after the service of garnishment summons and prior to the rendition of any judgment in the garnishment proceeding. More specifically, the ultimate question for determination is whether, after service of g-arnishment summons, these brokers were obligated to transact business on order of their customer, the judgment debtor, or whether the res was held subject to order of court, not to be disturbed by direction of the debtor. In presenting this question defendants argue that the various sections of the garnishment statute must be read together to ascertain the intendment of the legislature and the rights and obligations of the various parties in interest thereunder. Defendants’ brief presents an analysis of the various sections of the act. The gravamen of their argument is that the service of garnishment summons created a lien upon the goods and effects of the original defendant in possession of E. A. Pierce & Co., and from and after the date of the service the property remained in custodia legis. They point out that under sec. 21 of the Garnishment Act (Ill. State Bar Stats. 1935, ch. 62, ¶ 21; Jones Ill. Stats. Ann. 109.304) the plaintiff may be allowed, under an order of court for that purpose, to pay or tender the amount due the garnishee, who may thereupon deliver the goods, chattels, choses in action and effects in his hands which are mortgaged or pledged or in any way liable for the payment of the debt, to the officer who holds the execution and they say that under this section of the statute it became the duty of E. A. Pierce & Co., in this proceeding, to hold the securities in the account intact so that they would be in position to comply with any order of court that might be entered consistent with the provisions of the statute. Sec. 24 provides that when any garnishee has in his hands or under his control any goods, chattels, choses in action or effects belonging to or which he is bound to deliver to the defendant, with or without condition, the court may make any and all proper orders in regard to the delivery thereof to the proper officer, and the sale or disposition of the same, and “discharge of any lien thereon, and may authorize the garnishee to sell any such property or collect any chose in action and account for the proceeds thereof, ’ ’ or appoint a receiver to take possession and sell, collect or otherwise dispose of the property, and “make all orders in regard thereto which may be necessary or equitable between the parties.” It is urged that this section of the statute, as well as sec. 21 and other portions of the act, when considered together, emphasizes the fact that it was the intendment of the legislature to vest in the court control of the proceedings, and that as long as the court had jurisdiction of the matter, the garnishees, for their ■ own protection, would not have been justified in selling’ the securities at Kryl’s direction. Stevens v. Dillman, 86 Ill. 233; Becker v. Illinois Cent. R. Co., 250 Ill. 40; Silberman-Becker Corp. v. Hummel, 62 F. (2d) 285, where the Illinois garnishment act was involved; Sanders v. Armour Fertilizer Works, 292 U. S. 190, and other authorities are cited, which defendants’ counsel say establishes the law in Illinois that the service of garnishment summons creates a lien upon the goods in the hands of the garnishee.

Plaintiff on the other hand relies principally upon the early case of Bigelow v. Andress, 31 Ill. 322, decided under a former statute, wherein the court held (p. 332) that “By the service of the garnishee process, there can be no pretense that the property is, in any sense, transferred to the officer, or that he thereby acquires any right to control it. The garnishee still has the right to retain it, and by the service, only becomes liable to account for it or its proceeds, if judgment shall be rendered against him on the trial. The statute does not prohibit him from disposing of it, but only renders him liable on failing to produce it, to satisfy the judgment.” (Italics ours.)

Under the earlier statute no provision similar to that contained in the present act was made for the sale of property after the service of garnishment summons, and the court held that inasmuch as garnishment proceeding’s were unknown to the common law, if a lien exists by virtue of the service of garnishment process it could only be by virtue of the statute, and that the statute did not in terms make such service a lien upon the effects of the debtor in the hands of the garnishee.

Plaintiff argues that the word “lien,” as used in the authorities cited by defendants, is a term loosely used defining the relative rights of creditors between themselves, and is not applicable to the rights of the garnishor to goods in the hands of the garnishee. Ilis counsel cite a statement in 28 Corpus Juris, sec. 350, at p. 252, discussing the manner in which the word “lien” is frequently used, as follows:

“It would seem that unless the statutes expressly so provide the service of a writ or summons in garnishment or trustee process does not in the strict sense create a lien upon any specific property in the hands of the garnishee or trustee but gives rise only to a contingent personal liability to respond therefor to any judgment which may thereafter be recovered by plaintiff against defendant. However, the right acquired by plaintiff is frequently described as a lien, or an equitable lien, or quasi lien, or as an inchoate lien, which must be perfected by judgment against the garnishee ; more accurately, it is a specific rig’ht conferred upon plaintiff to the indebtedness or property for the payment of his claim over and above mere general creditors.” (Italics ours.)

The view that we take of this proceeding does not require that w.e determine whether the service of garnishment summons on E. A. Pierce & Co. created a specific lien in favor of the g'arnishor. The securities in question were pledged for Kryl’s debt, and under the statute the garnishor had the privilege of applying to the court for an order allowing them to pay the amount due the garnishee. In that event the court would have been empowered under the statute to require the garnishee to deliver the securities to the officer holding the execution. However, no such application was made, and under the circumstances E. A. Pierce & Có. were under no duty to continue to hold the securities in the face of the repeated insistence of Kryl that they be sold. Certainly, the garnishee does not have to wait indefinitely until such an order is entered. The garnishment creditor is required to act diligently if he desires to: obtain the benefits of sec. 21, and if he does not do so there is no compulsion to hold the property. It is difficult to reconcile the argument that the securities were in custodia legis and could not be sold without an order of court, with the fact that eventually they were sold by E. A. Pierce & Co. in a falling market without such order.

We think that E. A. Pierce & Co. would have been justified in selling the securities at Kryl’s direction under sec. 26 of the act, which provides:

“Nothing contained in this chapter shall prevent the garnishee from selling any goods, chattels, choses in action or effects in his hands for the payment of any demand for which they are mortgaged, pledged or otherwise liable, at any time before the amount due to him is paid or tendered, if such sale would be authorized as between him and the defendant.” As between Kryl and E. A. Pierce & Co., the latter was not only authorized but repeatedly requested to sell the securities, and we do not see why, under this section of the , statute, they would not have been fully protected in so doing.

Defendants produced as a witness Frank J. Buckholtz, who testified that the only way a broker can ascertain the selling price of a stock is to offer same upon the stock exchange and receive a bid therefor. Based upon this testimony they argue that any margin account is largely speculative, and because of the well known fluctuations in values of securities it becomes the duty of the brokers, for their own protection, to hold the property intact as of the date of the service of garnishment summons. Nevertheless, it is clear from the record that from July 7 to July 19 the market on these securities was fairly steady, and that they could have been sold at any time during that period for sufficient amounts to produce an equity in Kryl’s favor of substantially $40,000. The market quotations on the securities in question were introduced in evidence, and the argument that it would have been hazardous to sell them without knowing what they would produce is not convincing.

The net result of E. A. Pierce & Co.’s refusal to comply with Kryl’s direction was that instead of selling all the securities and realizing enough cash to pay the garnishor some $15,000, satisfying Kryl’s indebtedness to the bank, and leaving a net equity for Kryl of approximately $25,000, the securities were sold in a falling market, leaving only $6,550 available for the garnishor, to be applied on Kryl’s $15,000 debt to the bank and a deficiency of some $9,000 on the judgment. It could not have been the intendment of the Garnishment Act to produce any such inequitable and unnecessary result, when a sale of the securities, while the market was still steady, would have protected all parties in interest and given Kryl a substantial equity.

The rule is well settled that a customer who has a margin account with a broker may at any time order the sale of the securities in his account, and for failure to sell on such direction, resulting in loss, the broker is liable. (Markham v. Jaudon, 41 N. Y. 235; Knowlton v. Fitch, 52 N. Y. 288; Meyer on the law of stockbrokers and stock exchanges, sec. 134.) This rule of law is not argued or questioned by defendants, nor is the measure of damages awarded by the jury challenged.

Holding as we do that the verdict of the jury as to the controversial facts is supported by the evidence, and that under the provisions of the Garnishment Act, E. A. Pierce & Co. would have been justified and should have sold the securities on Kryl’s order, thus amply protecting all parties in interest, the judgment of the superior court should be affirmed and it is so ordered.

Judgment affirmed.

John J. Sullivan, P. J., and Scanlan, J., concur.


text:
    Chicago Title and Trust Company and Doris A. Case, Complainants, v. Central Republic Trust Company et al., Defendants. William L. O’Connell, Cross Complainant, v. Chicago Title and Trust Company and Doris Case, Cross Defendants. Chicago Title and Trust Company and Doris Case, Appellants, v. William L. O’Connell et al., Appellees.
    Gen. No. 38,641.
    Opinion filed February 9, 1937.
    Rehearing denied February 23, 1937.

      Judah, Reichmann, Trumbull, Cox & Stern, of Chicago, for appellants.
    McInerney, Epstein & Arvey, Grossman & Gross- „ man, William J. Flaherty and Jacobson, Merrick, Nierman & Silbert, all of Chicago, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an appeal by Chicago Title and Trust Company and Doris A. Case, as executors of the estate of Elmer G. Case, deceased, from an order entered accepting the resignation of William L. O’Connell, receiver of Central Republic Trust Company, as trustee under a trust agreement dated December 15,-1930, and appointing Louis Quitman as successor trustee.

Elmer G. Case filed his bill alleging that defendants Sidney Pellar, Ralph Pellar, Matthew Pellar, Benjamin Pellar, Charles Pellar and Joseph Pellar contracted to sell to him stock in the Pellar Pie Company; that under the terms of the contract Matthew Pellar, Ralph Pellar, Benjamin Pellar and Sidney Pellar each received $10,000 in cash and notes aggregating $22,750; that the complainant made a contract with Joseph Pellar and Charles Pellar to pay them for their stock in said company at certain stated intervals, and to secure the payment of the notes and the performance of the contract said stock of said Company and a note of the Case-Moody Pie Corporation in the principal sum of $287,260.90, payable to the complainant and by him assigned to the trustee, were deposited with the Chicago Trust Company, as trustee under the terms of the trust agreement; that the parties to the trust agreement were Chicago Trust Company, as trustee, party of the first part; the complainant, party of the second part; Joseph Pellar and Charles Pellar, parties of the third part; and Matthew Pellar, Ralph Pellar, Benjamin Pellar and Sidney Pellar, parties of the fourth part. The bill alleged that the complainant was induced to purchase said stock by the misrepresentations and fraud of the Pellars; that the trust agreement is void because of such fraud; that it is contrary to public policy; that it violates the rules against perpetuities, and is vague and uncertain and, therefore, is void and unenforceable. The bill also alleged that the transaction should be set aside, the Pellars restrained from transferring the notes, the trust agreement set aside and declared null and void, and the corpus of the trust estate be surrendered to the complainant; that the Chicago Trust Company was no longer in existence and that the Central Republic Bank and Trust Company was assuming to exercise the powers and functions of the Chicago Trust Company under the trust agreement; that there was no acting or qualified trustee; that the Chicago Trust Company had not resigned as trustee but had ceased to exist, and the trust agreement contained no provisions for the appointment of a successor in such event. The bill made Central Republic Bank and Trust Company, Sidney Pellar, Ralph Pellar, Charles Pellar, Matthew Pellar, Benjamin Pellar, and Fannie Pellar and Charles Pellar, as administrators of the estate of Joseph Pellar, deceased, parties defendant. Fannie Pellar and Fred Pellar, co-administrators de bonis non of the estate of Joseph Pellar, deceased (substituted by order of court in lieu of Fannie Pellar and Charles Pellar, administrators), filed an answer to the bill, in which they admitted, inter alia, the execution of the trust agreement and alleged that Central Republic Bank and Trust Company was the duly acting trustee under the trust instrument. They denied or demanded strict proof of all the allegations of the bill upon which relief was based. Sidney Pellar, Ralph Pellar, Charles Pellar, Matthew Pellar and Benjamin Pellar filed an answer to the bill, in which they denied that Central Republic Bank and Trust Company had no right to exercise the powers conferred upon the Chicago Trust Company in the trust agreement, and further denied that there was no acting and qualified trustee. They denied or demanded strict proof of all the allegations of the bill upon which relief was based. William L. O’Connell, as receiver of Central Republic Trust Company, formerly known as Central Republic Bank and Trust Company, was given leave to intervene and to file an answer to the bill, and was also given leave to file a cross-bill. In his answer he denied practically all of the material allegations of the bill and requested the instructions of the court in reference to the trust agreement. In his cross-bill he alleged that he was doubtful whether he had the power to resign by the method provided in the trust agreement and that he was also doubtful as to who the beneficiaries were to whom it was necessary to give notice of his resignation. He further set up that it was his duty, as receiver, under the statutes of Illinois, to resign the trust and make an accounting-, and he therefore resigned the trusteeship on behalf of the Central Republic Trust Company. The cross-bill prayed that his resignation be accepted and that the court appoint a successor trustee, and for other relief. The cross-bill made all the living parties to the trust agreement and the legal representatives of two deceased parties, parties defendant, as well as others who had or claimed to have some interest in the trust. Elmer G. Case died during the pendency of the proceedings and the executors of his will filed an answer to the cross-bill in which they incorporate all that portion of the bill of complaint wherein it is alleged that the trust agreement is void and it should be so held by the decree of the court. The answer denies that Central Republic Trust Company was trustee under the trust agreement, and charges that neither it nor the receiver had any authority to exercise any powers conferred upon the original trustee, and that there was no acting or qualified trustee. Charles Pellar, Sidney Pellar, Matthew Pellar, Benjamin Pellar, Ralph Pellar and certain other parties to the cross-bill filed their answer admitting, inter alia, that Central Republic Trust Company was the trustee under the trust agreement and stating that they had no objection to the trustee’s resigning, nor to the manner of his resignation, nor to the court’s accepting the resignation and appointing a successor trustee. The co-administrators de bonis non of the estate of Joseph Pellar, deceased, filed an ansiver to the cross-bill admitting, inter alia, that the Central Republic Trust Company was successor trustee and that it was the duty of the receiver to resign the trust; that it was necessary that a successor trustee be appointed.- The order appealed from recites that it was entered upon the files, records and pleadings in the cause, and the statements of counsel as to certain facts.

All of the appellees have filed a motion in this court to dismiss the appeal upon the ground that the notice of appeal filed by appellants was not served upon Louis Quitman, the successor trustee, nor upon his attorneys. We find no merit in this contention. Louis Quitman was not a party to the proceedings in the court below and is not a party at the present time. He has not appeared in the cause and submitted himself to the jurisdiction of the court, nor has he applied to the court for leave to become a party to the suit. Attorneys for the Pellars now living, for the administrators de bonis non of the estate of Joseph Pellar, and for the receiver of the Central Republic Trust Company, are here defending the instant order. The motion to dismiss the appeal is denied.

The appellees contend, “The order appointing* a successor trustee was not a final or appealable order, and, therefore, this Court does not have jurisdiction of the appeal.” The answer to this contention is not free from doubt and we have concluded to resolve the doubt in favor of appellants. The instant contention will be overruled.

We will first consider the complaint of appellants that “the hearing in the court below was conducted in a summary manner.” Upon the oral argument counsel for appellants stated that the proceedings were arbitrary and amounted to an invasion of the constitutional rights of the complainants, that if the trial court had not been arbitrary in his conduct of the hearing an appeal from the instant order would probably not have been taken. It seems clear that counsel for appellants, in the matter of this appeal, are actuated largely by their feeling* that they were not accorded a proper hearing in the court below. We have made a diligent search of the record and fail to find anything* therein to indicate that the trial court was prejudiced against appellants or that he was arbitrary or unfair in his consideration of the cause. Although the matter before the court was not an involved one, there were hearings held on June 17, June 20, and July 9, so that it is plain that there was no undue haste in the entering of the order. The court inserted in the order that “there is doubt under said trust agreement as to who are the persons now entitled to direct the Trustee in the distribution of the trust property. There is doubt whether the provision above set forth is applicable in the event of the resignation of said Receiver on behalf of said Central Republic Trust Company.” Appellants complain of these insertions. They were merely conclusions of law as to the effect of certain provisions in the trust agreement. Appellants complain that the court erred in forcing them to consent that the court in approving the report of proceedings certify that during the hearing* and prior to the entry of the order it was represented to the court that the parties, including* complainants, entitled to appoint a successor trustee, could not agree on such successor. Paragraph 6 of the order is as follows:

“It is provided by paragraph 14 of said trust agreement in part as follows:

“ ‘In the event of such resignation a successor or successors may be appointed by the person or persons then entitled to direct the Trustee in the distribution of the trust property. ’

“There is doubt under said trust agreement as to who are the persons now entitled to direct the Trustee in the distribution of the trust property. There is doubt whether the provision above set forth is applicable in the event of the resignation of said Receiver on behalf of said Central Republic Trust Company. In any event some of the persons now entitled to direct the Trustee in the distribution of the trust property are unwilling and have refused to appoint a Trustee to succeed said Central Republic Trust Company as Trustee as aforesaid. The trust created by said trust agreement should not be permitted to fail and, therefore, it is necessary that this court should appoint a suitable person or corporation to succeed said Central Republic Trust Company as Trustee and to whom said Receiver and said Central Republic Trust Company, upon the acceptance of said resignation, may transfer the assets and properties in said trust estate.” Appellants concede, as they must, that they consented to have the court insert in the order the provision that the parties could not agree on a successor in trust, and it seems hardly fair to the trial court for them to make the point in this court that they were “practically forced to consent” to its insertion. Upon the oral argument it was conceded that all of the beneficiaries to the trust agreement were before the court, and that, with the exception of appellants, they made no objection of any kind to the order. By their pleadings all of the parties save appellants consented to the appointment of a successor in trust by the court. Appellants, in their bill, charged that all of the other beneficiaries in the trust were guilty of fraud and duress and that because of such conduct the trust agreement was void. The trial court had a right to assume from the pleadings before it, as well as from the attitude of the parties during the hearing, that they could not agree on a successor trustee. In view of the theory of their bill appellants could not have consented to the appointment of a successor trustee without seriously weakening their case. They stood before the trial court contending that no successor in trust could be appointed. It is only fair to the trial court to say that the record shows that he treated all of the litigants with courtesy and consideration.

Appellants contend that “the Court was without power and jurisdiction to entertain the cross bill of William L. O’Connell, receiver, and to appoint a successor trustee.” In support of their contention appellants argue: “The trust agreement provided the method by which the trustee might resign and a successor trustee be appointed. Such a provision is binding on the parties and must be followed, and unless it is impossible to follow the method so provided, resort cannot be had to a court of equity. There was no showing or proof in the court below that the method so provided could not be followed by the receiver. Where a bank which is trustee under a trust agreement is closed by the auditor and a receiver is appointed, it becomes the duty of the receiver to resign the trust within a reasonable time, and until such resignation is given, in accordance with the method provided in the trust agreement, there is no vacancy to be filled.” The theory of appellants in the trial court was that the trust agreement was void, but in this court they are now insisting that the provisions of the trust agreement in reference to the appointment of a successor trustee should have been strictly followed. It is elementary law that they cannot change their position in this court. If upon the final hearing- of the issues raised by the bill it is determined that the trust agreement is void, the instant order would be of no force and effect. There is merit in the contention of appellees that as the trust agreement made no provision for the resignation of the trustee and the appointment of a successor trustee the trial court, under the record, had the right under its general equity powers to appoint a successor trustee.

Appellants contend that “the order appointing- the successor trustee is erroneous, even' conceding the Court had the power to enter it, because, the order shows on its face that there are beneficiaries under the trust agreement who are not parties to the cause. ’ ’ It is difficult to understand why such a contention should be raised. All of the living- parties to the trust agreement and the legal representatives of the deceased parties filed answers to the original bill and the cross-bill. All of the parties to the original bill and the cross-bill were represented by counsel upon the hearings. At one of the hearings the following* occurred : ‘ The Court: Let me ask the gentlemen, are all the beneficiaries, all the persons interested in this matter- — are the parties here? Mr. Conger (for William L. O’Qonnell): They are all before the Court. The Court: All right. ’ ’ Counsel for appellants made no objection to this statement. Nor did they at any time during the hearing suggest to the court that all of the beneficiaries were not represented. Complainants ’ bill purported to make all of the beneficiaries parties to it and none of the answers to the hill alleged a lack of necessary parties.

Appellants contend “that the receiver had no right to go into the court below, as he did, by cross-bill, and ask that his resignation be accepted and that a successor trustee should be appointed. Such a proceeding is unheard of and has been so characterized by the Illinois Supreme Court in a very recent case. We refer to the case of Dillon v. Elmore, 361 Ill. 356.” This contention is an afterthought and was not raised in the trial court. The receiver, by leave of court, was allowed to become a party to the proceedings, to file an answer to the original bill, and to file a cross-bill. No objection to the order was interposed by appellants or by any other party to the proceedings. The receiver filed an answer to the bill and appellants did not question, in any way, his right to do so. When the receiver filed his cross-bill appellants interposed no objection to the filing of the same, and answered it. In the hearings before the trial court appellants did not even suggest that the receiver had no right to file the cross-bill. By their attitude in the trial court they are now precluded from raising- the instant contention. Dillon v. Elmore is not an authority in support of appellants’ contention. In that case the right of the intervening-petitioner to file his petition was directly challenged by the complainant. The intervening petition asked that complainant’s bill to foreclose be dismissed. Complainant’s demurrer to the intervening petition was overruled, and leave was denied him to file a supplemental bill. In the instant case the receiver, acting-trustee, was a defendant in a suit that involved the validity of the trust, and the court had jurisdiction of the trust, the parties thereto, and the trust property. It was the receiver’s duty, under the law, to resign the trusteeship on behalf of the bank. (See People ex rel. Barrett v. West Side Trust & Sav. Bank, 280 Ill. App. 308, 321-322.) The receiver, acting trustee, was a necessary party defendant. Complainants, by their bill, recognize the necessity of making the trustee a party to the action. The receiver was not attempting, by his cross-bill, to prevent complainants from maintaining their bill. He was merely attempting to obey the law in reference to his duty to resign. By his action he withdrew from the litigation and the successor trustee merely stepped into his shoes, in so far as the trusteeship was concerned. The trial court stated that in entering the order in question he had in mind the fact that the Central Bepublic Trust Company, trustee, was in the hands of a receiver, who had resigned the trusteeship, and that he deemed it necessary to have someone in the case representing- the trusteeship. As we have heretofore stated, if complainants prevail under their bill the order will be of no force or effect. But until complainants do prevail there should be some party to represent the trusteeship. There is nothing-in the order appealed from that in any way interferes with complainants ’ prosecuting their bill, and they are complaining of an order that does not adversely affect their rig’hts.

We find no merit in the instant appeal, and the decretal order of the circuit court of Cook county is affirmed.

Decretal order affirmed.

John J. Sullivan, P. J., and Friend, J., concur.