author: Mr. Presiding Justice Niehaus

text:
    Lester Berry, Administrator of the Estate of John Berry, Deceased, Appellee, v. Elmer Berry, Appellant.
    Gen. No. 7,834.
    1. Gifts — delivery is essential. A delivery of the subject matter of a gift is of the essence of the title, and if the things be not capable of actual delivery, there must be some equivalent to it.
    2. Gifts — writing essential to gift of indebtedness not evidenced by writing. There could be no valid gift inter vivos by creditor to debtor subsisting in the latter’s oral promise to repay a loan, in the absence of an assignment or some equivalent instrument.
    3. Limitations of actions — revival of indebtedness by payment of interest. Indebtedness barred by limitations was revived and the statute tolled by payment of interest to the creditor’s administrator.
    4. Payment — certificate of deposit without delivery not payment. The taking of a certificate of deposit from a bank made payable to creditor did not constitute payment to the creditor until delivery of the certificate to the creditor or his personal representative, unless deposit is made pursuant to an understanding or agreement or the creditor takes some steps to appropriate the deposit.
    5. Limitations of actions — delivery of certificate of deposit held payment reviving indebtedness. Where debtor took out certificate of deposit made payable to order of creditor and held the certificate until after the death of the creditor at which time he delivered the certificate to the administrator, the delivery of the certificate to the administrator did not constitute merely a delivery of an asset belonging to the estate but constituted part payment which revived the indebtedness, the deposit not becoming the property of the creditor until delivery of the certificate.
    6. Banking — debtor taking out certificate of deposit in name of creditor could dispose of it. A debtor taking out certificate of deposit from a bank made payable to the creditor as long as he retained the certificate in his possession could dispose of it in any way he desired.
    7. Estates of decedents — indebtedness adjusted against distributive share. Indebtedness of child to estate could be adjusted against his distributive share in the estate without the necessity of suit to collect.
    Appeal by defendant from the Circuit Court of Pulton county; the Hon. George C. Hellyee, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed October 27, 1925.
    W. S. Jewell, A. E. Taff and F. F. Putman, for appellant.
    Glenn Ratcliff, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

The appellant, Elmer Berry, borrowed $4,000 from his father, John Berry, in the year 1914, under an oral agreement to repay the same with 5 per cent interest per annum. The first year’s interest was paid by the appellant. No further payment of interest was made, however, and no part of the amount borrowed was repaid. John Berry died intestate February 9, 1923, and his son Lester Berry, the appellee, was appointed administrator of the estate by the county court of Fulton county, and administered the estate. In his final report as administrator for distribution of the estate, reference is made to appellant’s alleged indebtedness to the estate as follows:

“The said administrator would further report that Elmer Berry is indebted to the estate of John Berry in the sum of $4,000 together with interest on said sum for a period of six years or more; that no note was found among the papers of the said John Berry for said amount; that said administrator has not deemed it advisable to commence action on said account, but that the distributive share of the said Elmer Berry in the estate of the said John Berry should be set off against the said indebtedness owed by the said Elmer Berry to said estate, and has been so set off by this administrator, and that the said sum on hands for distribution should be distributed among the heirs of the said John Berry other than the said Elmer Berry.
“* * * The said administrator would further report that he is desirous of distributing the sum of $22,000 of the money now in his hands, prior to April 1,1924, and asks that the court fix a time for hearing on this report, and the manner of giving notice to the said heirs and distributees, and that on said hearing an order may be entered authorizing him to make distribution of said sum to the distributees hereinafter named, in the amounts as hereinafter set forth.”

The appellant filed objections to the approval of that part of the report on the ground that he was not indebted to the estate; and that the amount claimed could not legally be set off against his share of the estate. The county court sustained the objection, but on appeal to the circuit court the objections were overruled, and the administrator’s report was approved. This appeal is prosecuted from the order and judgment of the circuit court.

It is contended by the appellant that he is not indebted to his father’s estate; that the amount borrowed and interest thereon claimed, prior to his father’s death, had become the subject of a verbal .gift by the father, inter vivos. A stipulation concerning the facts was entered into by the parties. That part of the stipulation which refers to this feature of the controversy is as follows:

“It Is Stipulated and Agreed that Verna Berry, who is a sister of Elmer Berry, and a daughter of John Berry, deceased, would testify in this cause that within a few days after the 5th day of December, 1916, that being the day when John Berry is alleged to have conveyed by deed one forty (40) acre tract of land to Elmer Berry and another forty (40) acre tract of land to Verna Berry, that within a few days after that date and after said alleged transaction at the home of John Berry, now deceased, the said John Berry had a conversation with the witness, Verna Berry, in which he told Verna Berry that he had given to Elmer Berry the Four Thousand ($4000) Dollars that Elmer Berry had previously borrowed of him for the purpose of making up the difference to Elmer Berry between the values of the two forty (40) acre tracts of land that he had deeded, one to Elmer Berry and the other tó Verna Berry.”

It will be noted that the gift claimed was of an indebtedness not evidenced by a writing obligatory, the title of which could pass by delivery but was an indebtedness subsisting in the appellant’s oral promise to repay his father the amount borrowed with interest, and therefore was a chose in action and not susceptible of delivery. A delivery of the subject matter of a gift is of the essence of the title; and “if the thing be not capable of actual delivery, there must be some equivalent to it.” If it be a chose in action, the law required an assignment, or some equivalent instrument, and the transfer must be actually executed. 2 Kent, Comm. p. 439; 28 Corpus Juris, p. 668, note 91; Van Cleef v. Maxfield, 103 Misc. 448, 171 N. Y. S. 333, affirmed 186 App. Div. 906, 172 N. Y. S. 923; Shepard v. Shepard, 164 Mich. 183, 129 N. W. 201; Parker v. Mott, 181 N. C. 435, 107 S. E. 500. A gift inter vivos made by parol of a chose in action of this character, not evidenced by a written instrument, is invalid. Adams v. Merced Stone Co., 176 Cal. 415,178 Pac. 498, 3 A. L. B. 928-931; Poff v. Poff, 128 Ya. 62, 104 S. E. 719-726; Grady v. Sheehan, 256 Pa. 377, 100 Atl. 950; Hawn v. Stolen, 208 Pa. 610, 65 L. R. A. 813, 57 Atl. 1115; Sanborn v. Goodhue, 28 N. H. 48, 59 Am. Dec. 398. The rule emphasized in the foregoing authorities was recognized and followed in this State in Wachsmuth v. Penn Mut. Life Ins. Co., 147 Ill. App. 510; Sutton v. Lemen, 130 Ill. App. 50. We are of opinion, therefore, that the gift claimed was not valid as a gift inter vivos.

It is also contended by the appellent that the indebtedness is barred by the statute of limitations. Concerning this question, it is sufficient to say that assuming that the indebtedness was barred, it was revived, and the statute tolled by the payment of the interest which had accrued thereon. On June 22, 1922, before the death of his father, appellant took out a certificate of deposit from the Pairview State Bank for the sum of $242.11, and the certificate was made payable to the order of his father; and after the death of the father it was delivered to the administrator, in payment of part of the interest which had accrued during the lifetime of the father on the indebtedness in question. Appellant contends that the delivery of the certificate of deposit mentioned was not really a part payment of interest due, but amounted merely to a delivery to the administrator of an asset belonging to the estate of appellant’s father. It must be pointed out, however, that the certificate could not legally become the property of the father, though made payable to him, without a delivery thereof. Telford v. Patton, 144 Ill. 611; Fanning v. Russell, 94 Ill. 386; Farmers & Merchants State Bank of Marion v. Gleason, 75 Ill. App. 251. It is not contended that the certificate in question was ever delivered. Making a deposit, merely of money due a creditor does not constitute a payment to the creditor, unless the deposit is made pursuant to an understanding or agreement with the creditor, or the creditor takes some steps to appropriate the deposit. Stevenson v. Earling, 213 Ill. App. 395; Chettenham Stone & Gravel Co. v. Gates Iron Works, 124 Ill. 623. None of the certificates of deposit taken out successively by the appellant in the lifetime of appellant’s father ever became the property of the father, but always remained in the possession of and under the control of the appellant; and he had the legal right to and did dispose of them in the way he desired. If the certificate of deposit in question was not the property of appellant’s father at the time of the death of the father, it follows, as a matter of course, that it was not in legal contemplation an asset of his estate, and did not become a part of the estate until it was turned over to the administrator ; and it is clear that the certificate in question was delivered to the administrator to discharge a part of the interest which had accrued on the money borrowed, and that it was received by the administrator on that account. Payment of interest due on a debt revives the debt as of the date of the payment. Stein v. Kaun, 244 Ill. 32; Macfarland v. Utz, 175 Ill. App. 525. We are of opinion therefore that at the time of the settlement of the estate of appellant’s father the $4,000 borrowed by the appellant was a subsisting indebtedness, and that it was legally competent and proper to adjust the same against the distributive share of the appellant in the estate. Egan v. Clark, 87 Ill. App. 246; Webb v. Fuller, 85 Me. 433, 22 L. R. A. 177; La Foy v. La Foy, 43 N. J. Eq. 206, 3 Am. St. Rep. 302, 10 Atl. 266; New v. New, 127 Ind. 576, 27 N. E. 154; Fiscus v. Moore, 121 Ind. 547, 23 N. E. 362; In re Lietman’s Éstate, 149 Mo. 112, 50 S. W. 307, note in 1 A. L. R. 993, 994, 996; Smith v. Kearney, 2 Barb. Ch. (N. Y.) 533; Irvine v. Palmer, 91 Tenn. 463, 19 S. W. 326; In re Foster’s Estate, 38 Misc. Rep. 347, 77 N. Y. S. 922.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jennie C. Hinkle, Appellant, v. John Gall, Sr., Appellee.
    Gen. No. 7,871.
    Parent and child — liability of parent for negligence of minor child driving automobile. A parent who purchased and maintained an automobile for pleasure and comfort of himself and family was liable for negligence of a minor child who was driving the automobile for his own pleasure, it appearing that the parent could not drive, himself.
    Appeal by plaintiff from the Circuit Court of Vermilion county; the H-on. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded with directions.
    Opinion filed October 27, 1925.

      Fleming & Henderson, for appellant; Arthur Poorman, of counsel.
    Acton, Acton & Snyder, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This suit was commenced in the circuit court of Vermilion county by the appellant, Jennie 0. Hinkle, against the appellee, John Grail, Sr., to recover damages sustained by her by reason of injuries which she claims to have suffered on account of the alleged negligence of appellee’s minor son, Andrew Cfall, while he was driving appellee’s automobile, which came into collision with an automobile in which the appellant was riding. A demurrer was sustained to the declaration, and judgment rendered for costs against the appellant. This appeal is prosecuted from the judgment.

The first count of the declaration contains the following allegations:

“For That Whereas heretofore on to-wit: the 16th day of November, A. D. 1924, and for several months prior thereto, the defendant, John Grail, Senior, was the owner of and in possession of a certain motor vehicle, commonly called an automobile, to-wit: a Buick Touring car, with a carrying capacity not exceeding seven passengers; that the defendant was then and there a man of the age of to-wit: fifty-five years; that the family of the said defendant then and there consisted of the defendant, his wife, a minor son, Andrew Grail, who was of the age, to-wit: Eighteen years, and another son, John G-all, Jr., all of whom then and there lived together in one household.
“That the said minor son, Andrew Grail, had no property in his own right, but lived at the home of his said father and as a member of his said father’s household, and then and there was rendering unto his father the usual services of a son to a father in said household;
‘ ‘ That the said defendant had heretofore purchased said automobile aforesaid for the pleasure and comfort of said defendant, Ms wife and Ms two sons, the said Andrew Gall and the said John Gall, Jr., and then and there kept, mantained and had possession of said automoMle for the pleasure and comfort of the defendant, Ms wife and his two sons named aforesaid;
‘ ‘ That the said defendant and his said wife did not drive said car themselves, but that the said defendant requested, authorized and permitted the said minor son, Andrew Gall, to drive the car for him, for the pleasure and comfort of the said defendant, and his said wife; also for the pleasure and comfort of Ms said minor son, the said Andrew Gall.
“That on to-wit: the 16th day of November, A. D. 1924, at to-wit: the hour of eight o’clock, P. M. of said date, the plaintiff was riding as a passenger in an automobile commonly called a Studebaker, then and there the property of one Tusko Denny, then and there being lawfully driven by the said Tusko Denny, upon and along a certain public highway in the City of Danville, County and State aforesaid, said highway being then and there commonly called East Main Street, where said East Main Street is intersected by what is commonly called Fifth Avenue in the said City of Danville; that the said Tusko Denny was then and there driving Ms said automobile from said East Main Street to and upon said Fifth Avenue, and was then and there driving Ms said automobile in a Northeasterly direction; that the plaintiff was then and there and at all the times hereafter mentioned, in the exercise of due and ordinary care for her own safety; and that on to-wit the day and at the time aforesaid, the said Andrew Gall, was driving the said automobile of the said John Gall, Senior, aforesaid for his own pleasure in a Westerly direction on said East Main Street, at a place where said East Main Street is intersected by what is commonly called Fifth Avenue in said City of Danville.
“That the said Andrew Gall was then and there driving said Buick automobile for Ms own pleasure and for one of the purposes for which the said automobile was then and there kept and maintained, by the defendant, and was then and there driving the said Buick automobile with the consent, knowledge and permission of the said defendant and within the purpose for which the defendant purchased, kept, maintained and controlled said Buick automobile, and the said defendant, by the said Andrew Gall, then and there acting as the agent for the said defendant, and while driving said Buick automobile for one of the purposes for which the defendant then and there kept and maintained said Buick automobile, did negligently and carelessly drive and run said Buick automobile into the right side of the said Studebaker automobile, in which the plaintiff was then and there riding at to-wit the place aforesaid, and thereby and by reason of such negligence and carelessness of the said defendant, by his agent in that behalf, the said automobile then and there in charge of the said Andrew Gall, did run into and strike the said automobile then and there in charge of the said Tusko Denny, in which the plaintiff was then and there riding, and then and there did throw the plaintiff against the different parts of the automobile in which she was then and there riding and did then and there fracture four bones of the pelvis of the plaintiff, and otherwise did bruise, hurt and injure the plaintiff.”

The allegations in the second count are substantially the same as in the first, but the negligence charged therein is that the appellee’s car was driven at an excessive rate of speed.

The controverted question raised by the demurrer, and which the court decided adversely to the appellant’s contention, is whether the father, as owner of the automobile, is liable for the alleged negligence of the son while driving the father’s car, under the circumstances alleged. It will be noticed that the averments in the declaration are to this effect: That the appellee purchased and maintained the automobile in question for the pleasure and comfort of himself and the members of his family, who lived together in the same household, and which included the son referred to; that the father could not drive his own car, and hence had to rely on other members of the family to perform that service for the family, in order to effectuate the purpose for which he had purchased and for which he was maintaining the car; that at the time of the collision the son was using the car for his own pleasure, and as. a member of appellee’s family, with the permission of and by the authority of the appellee, and was his agent. These allegations in the declaration apparently bring the case directly within the rule announced by the Supreme Court in Gates v. Mader, 316 Ill. 313. Under the rule there announced we are of opinion that the declaration stated a cause of action. The judgment is therefore reversed and the cause remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    Eugene Pitts, Appellee, v. Oscar F. Ross and Delia Ross, Appellants.
    Gen. No. 7,881.
    1. Set-off, counterclaim and recoupment — right of wife to set off damages in action against herself and husband. In action against wife and husband by osteopath and midwife for services to wife, the wife was not deprived of her legal right of recoupment for damages resulting to her from negligence of the plaintiff by the fact that her husband was jointly liable with her for claims, nor by the fact that the husband may have discharged some of the liabilities necessarily incurred by her as a result of the alleged negligence.
    2. Set-off, counterclaim and recoupment — unliquidated damages may be set off as counterclaim. In action for services as osteopath and midwife wherein wife claimed damages from negligence of plaintiff, the fact that the damages were unliquidated was not a legal obstacle to their allowance as a counterclaim, the counterclaim growing out of the same subject matter made the legal basis of plaintiff’s claim.

      Appeal by defendants from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed October 27, 1925.
    Foster & Morrissey, for appellants.
    A. E. & R. C. DeMange, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case the appellee, Eugene Pitts, sued the appellants, Oscar F. Boss and Delia Boss, husband and wife, to recover $113.50 for services, which it is alleged were rendered for the family of the appellant by the appellee as osteopath and midwife. Fifty dollars of the amount claimed to be due is a charge for services rendered to the wife, Delia Boss, while in confinement during childbirth. The suit was commenced before a justice of the peace in McLean county and a judgment was rendered in favor of the appellee, from which an appeal was taken to the circuit court and thereupon a jury trial de novo was had. At the conclusion of all the evidence the court directed a verdict in favor of the appellee for $113.50, and rendered judgment against the appellant for that amount. This appeal is prosecuted from the judgment.

The principal error assigned as a ground for reversal of the judgment is the action of the court in directing the verdict. A number of witnesses were called on the part of the appellants, and the testimony of these witnesses tends to show that the appellee in rendering his services to the appellant Delia Boss, during childbirth, did not exercise reasonable care and skill, and that his failure to do so caused her severe pain and suffering; and it also tends to show that the appellee was negligent in not applying the customary antiseptic precautions and generally recognized method in removing the placenta after childbirth, and that this negligence resulted in causing the appellant Delia Boss to become ill from septic infection, and caused hemorrhage of the uterus; and that it subsequently necessitated an operation to be performed on her. There was also some evidence that tended to show that the appellant Delia Boss suffered some pecuniary damages. We are of opinion that the evidence referred to, which was competent and properly admitted, constituted a proper matter to be considered by the jury on the question of recoupment against appellee’s claim for the services rendered. Howell v. Goodrich, 69 Ill. 556; Hutchinson v. Nettleton, 175 Ill. App. 277; Ritchey v. West, 23 Ill. 385; McNevins v. Lowe, 40 Ill. 209. The wife is not deprived under these circumstances of her legal right of recoupment for the damages resulting to her by the fact that her husband is made jointly liable with her for claims of this kind, nor by the fact that the husband may have discharged some of the liabilities necessarily incurred by her as a result of the alleged delinquencies in rendering services of this character. The counterclaim of recoupment grows out of the same subject matter which is made the legal basis of appellee’s claim. It is true that the husband is jointly liable, but only for the amount which the wife is liable for; hence any counterclaim which the wife may have, growing out of the subject of the suit, such as counter services rendered, or damages suffered for wrongful acts in connection with the services rendered, are competent proof to determine what amount, if any, is recoverable from the wife. Nor is the fact that the damages are unliquidated a 1egal obstacle to their allowance as a counterclaim. South Chicago City Ry. Co. v. Workman, 64 Ill. App. 383. The legal situation of the parties is the same as in a suit against a principal debtor and his sureties, and in such a situation a counterclaim of the principal would be a proper set-off. Himrod v. Baugh, 85 Ill. 435; Hayes v. Cooper, 14 Ill. App. 490.

For the reasons stated we are of opinion that the question of the merits of the claim of the appellant Delia Boss should have been submitted to the jury, and that it was therefore error to direct a verdict. The judgment is reversed and the cause remanded.

Reversed and remmded.


author: Mr. Justice Crow

text:
    Grant Keime, Appellant, v. Frank Thum and Henry Thum, Appellees.
    Gen. No. 7,863.
    1. Pleading — no implied promise to pay in pleading. In pleading there is no such thing as an implied promise to pay, but all promises are averred to be express and are so treated in passing on demurrer.
    2. Pleading — verified statement of claim must state whether promise implied or express. The rule that in pleading there is no such thing as an implied promise to pay, and all promises are averred to be express, does not apply to a verified statement of plaintiff’s claim which must state all the facts' necessary to support the action.
    3. Pleading — no recovery under implied promise where verified claim alleges express promise. There can be no recovery on an implied promise to pay where verified statement of claim alleges an express promise to pay.
    4. Sales — price may be fixed as upon happening of subsequent event. It was competent for parties in making sale of corn to agree upon the manner in which the price should be determined, and that might be the market price at a future time and place or upon the happening of a subsequent event, under Uniform Sales Act, sec. 9, Cahill’s St., ch. 121a, It 12.
    5. Sales — implied agreement by seller concerning price. Where corn was sold and delivered under an agreement that the price should be that received by seller for the remainder of his corn, there was an implied agreement on the part of the seller to sell the remainder of his corn.
    6. Contracts — implied promise to perform act. In any case where from its nature a contract requires some action by one party or the other or the co-operation of both, there is an implied promise to perform the act or give the co-operation, though the promise is not expressed.

      7. Sales — price of corn under agreement. Where corn was sold and delivered under agreement that price was to be that re- " ceived by seller for the remainder of his corn, but seller failed to sell the remainder of his corn and fed it to hogs, the amount that seller was entitled to recover from purchaser was not the market value of the corn at the time, of the sale but such value at the time he fed it to the hogs.
    8. Sales — contract as to price construed. Where corn was sold and delivered under agreement that price was to be that received by seller for the remainder of his corn, but seller fed the corn to his hogs, the measure of recovery for the corn was not the amount netted seller by feeding it instead of selling it.
    9. Instructions — object of instructions. The object of instructions is to aid the jury, uninformed as juries are, as to the method of looking at evidence and in ascertaining and applying the law to the facts in controversy.
    10. Sales — determination of price by sale of balance remaining. Where corn was sold under agreement that price should be that received by seller for remainder of his corn, the price was to be determined by a sale of all of the remainder of the corn and not “a reasonable amount” thereof.
    11. Tender and deposit in court — defect immaterial where plaintiff would not accept. That there was a defect in verbiage of defendants while making tender was immaterial if it is clear that plaintiff would not accept it in any event.
    Appeal by plaintiff from the Circuit Court of Fulton county; the Hon. George C. Hillveb, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed October 27, 1925.
    Rehearing denied December 16, 1925.
    Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, for appellant.
    Glenn Ratcliff, for appellees.
   Mr. Justice Crow

delivered the opinion of the court.

Appellant sold to appellees a quantity 'of unshelled com in the month of August, 1920. Afterward, in 1922, a dispute arose as to the price of it. Thereupon appellant brought suit against appellees, filing the common counts. With the declaration an affidavit of plaintiff’s claim was filed. It stated that the demand of the plaintiff in said cause “is for 1,554-2/7 bushels of com sold and delivered by the plaintiff to the defendants at a price of $1.80 per bushel, which the defendants agreed to pay the plaintiff, and that there is due to the plaintiff from the defendants the said sum of $2,797.70, after allowing them all just credits, deductions and set-offs.”

To the declaration defendants pleaded that as to all sums of money due in excess of the sum of $1,158 they did not promise in manner and form as the plaintiff in his declaration and in each count had complained of them, and that as to the sum of $1,158 parcel of the sums demanded, they pleaded a tender and refusal to accept it, stating facts keeping the tender good. To the plea plaintiff filed a replication traversing the tender.

With the plea defendants filed an affidavit of merits of their defense, and afterward filed an amended affidavit- of merits. In the amended affidavit they say they “have a good defense to said suit upon the merits to the whole of the plaintiff’s demand, and that the nature of the defense is that as to the sum of $1,158 of the plaintiff’s demand these defendants have tendered said sum to the plaintiff prior to the commencement of this suit, and have brought said sum of money into court for said plaintiff where he can receive the same, and that as to the balance of the claim of the said plaintiff’s demand other than the said sum of $1,158 defendants do not owe the same or any part thereof to the plaintiff, for the reason that the defendants never bought the corn set forth and mentioned in plaintiff’s affidavit or any part thereof for $1.80 per bushel, and never agreed to pay to the plaintiff that amount therefor; that these defendants were to pay the plaintiff for the corn purchased by them from him and being the same corn sued for in this suit at the same rate per bushel that the said plaintiff should receive on the market when he sold the balance of the corn that he then had on hand; that the said plaintiff did not sell said com on the market but fed said corn to Ms live stock during the summer of 1922, and that at the time said plaintiff so disposed of said com the market price of the same was less than the sum of 60 cents per bushel, and less than the amount already tendered to the plaintiff; that because of the failure of the plaintiff to sell said corn so as to fix the price to be paid by these defendants, for the com purchased by them the plaintiff has lost his right to receive anything more for said com so purchased by the defendants than the fair market price of said com at the time he disposed of the remainder of his said corn; and that the defendants did not nor either of them ever become or are now indebted to the plaintiff for any com purchased of the plaintiff in any sum in excess of the amount already tendered him.”

Upon the issues formed by the pleadings, restricted by the affidavits of plaintiff’s claim and of the merits of defendants’ defense, the cause was tried before a jury which found the issues for the defendants and that the tender was sufficient. The motion for a new trial was overruled and judgment rendered against plaintiff for costs and this appeal followed.

Thirteen errors are assigned as grounds for reversal of the judgment. It will simplify the disposition of the case to advert more particularly to the state and legal effect of the pleadings. By them the parties have placed upon the record the statement of facts that must determine the controversy. The consolidated common counts were filed, stating in nine different, general and indefinite forms the demand of the plaintiff. But the affidavit of plaintiff’s claim eliminated all counts except that for “goods, chattels and effects before that time sold and delivered by plaintiff to defendants at their request.” That count was by the affidavit rendered certain and definite in all the terms authorizing a recovery. By it the quantity of corn sold and delivered, the price per bushel, and the express agreement of defendants to pay the price, were explicitly stated, and the amount due under those terms. Under the elementary principles of procedure he could recover only upon proof of those terms by a preponderance of the evidence if challenged, as they were, by an appropriate plea supported by an affidavit of merits of the defense stated in the plea. Reddig v. Looney, 208 Ill. App. 413. Upon this state of the record the parties went to the jury.

Under the count for goods and chattels sold and delivered, the averment that the defendants being so indebted in consideration thereof then and there promised to pay the plaintiff the sum of money due is in form the averment of an express promise. This is a matter of pleading only. In the absence of an affidavit of plaintiff’s claim, delivery of corn, though no price had been fixed, could be shown by evidence of a delivery under such circumstances as that the law imputes a promise to pay what it is reasonably • worth at the time of such delivery. In pleading there is no such thing as an implied promise to pay. All promises are averred to be express and are so treated in passing on demurrer. 1 Chitty, Pleading, p. 302; Gould’s Pleading, oh. 3, sec. 19. But that rule does not apply to a verified statement of plaintiff’s claim under the statute. The verification must state all the facts necessary to support the action. If it does not, it will on motion be stricken from the files, not being subject to demurrer. If the preponderance of the evidence produced at the trial does not sustain the case upon all the facts stated in the affidavit, the plaintiff must fail. The verified statement of defense is attended by the same consequences.

The testimony on behalf of plaintiff does not support his sworn statement that the agreed price was $1.80 per bushel. Plaintiff does not testify defendants were to pay that price. His testimony corroborates the affidavit of merits of defendants’ defense as to the method of ascertaining the price of the corn sold to them. All the evidence as it is found in the transcript not only fails to establish an agreed price, but establishes the fact that there was not an agreed price at the time the corn was sold. On the other hand, it shows that they agreed upon the method of ascertaining the price to be fixed in the future, as stated in the affidavit of merits of the defense.

It was competent for the parties, in making the sale of com to agree upon the manner in which the price should be determined. That might be the market price at a future time and place or upon the happening of a subsequent event (35 Cyc., p. 48, note 19; 35 Cyc., p. 103, note 80; 35 Cyc., p. 104; Uniform Sales Act, sec. 9, Cahill’s St. ch. 121a, 12). The defense was that the price to be paid was that which should obtain on the sale by plaintiff of the remainder of the corn after defendants got their corn. This was a contingency controlled by the plaintiff. It was never out of his power to control it. If he saw fit to refuse to comply, he should not in equity and good conscience be heard to insist some other method more advantageous to him should be substituted.

With regard to the plaintiff’s contract that the price should be that received by him for the remainder of his com, there was an implied agreement to sell it. In any case where, from its nature, a contract requires some action by one party or the other or the cooperation of both, there is an implied promise to perform the act, or give the co-operation, though the promise is not expressed. Williston, Contracts, sec. 1293.

The evidence discloses prospective purchasers sought after the sale to defendants to buy com from plaintiff but he declined to sell unless he could sell all he had “to establish a price.” The price to be established must have been of this com. The evidence warrants no other conclusion. The evidence then shows he bought hogs and fed the remainder of the corn to them. The price of corn was then declining. Shortly after he had fed them and sold them he demanded $1.77 per bushel for the com, because, as he stated, that was the amount netted him by feeding them. But that was not the contract and defendants properly refused to pay on that basis.

There being no basis for fixing the price by the agreed method on account of plaintiff’s conduct, a price must be fixed upon some other basis. The contract of the parties was no longer the law of the parties because plaintiff had created a condition rendering that law inoperative. Plaintiff committed a breach of it. The price of the corn could not be fixed by the price of the remainder, for he did not sell it, and had fed it to hogs. He sought arbitrarily to substitute a device advantageous to him, for that upon which the minds of the parties met when the sale was made. Defendants have not sought to avoid payment. If no agreement had been made as to price, under the established rule the market price at the time and place of delivery would govern, for the price was. then due. Appellant contends that rule must govern under the facts shown by this record. Appellees contend that, the price by agreement having been fixed by a sale of the remainder of the com to be made in the future, the fair market price at that time must control.

We think the contention of appellees is right arid ought to be sustained. Why should plaintiff be allowed the market price of corn at the time .it was sold and delivered when they had expressly agreed it should be fixed upon a basis of sales to be made in the future and when the seller refused to sell, and more profitably consumed the com himself? By stipulating a future price based upon future sales plaintiff contracted away the right to demand the current market price at the time of the sale. He not only contracted away that right, but by the contract fixed a contingent price which would be due at a future time. The only contingency upon which he would be entitled to the market price at the time of the sale would be the fact no other price or terms was agreed upon. But when they agreed, as the evidence shows, that the fair market price when in the future plaintiff should sell the remainder of his com should be the measure of defendants’ liability, and that he used it for his own purposes, every principle of morals and of law requires him to accept what then was the fair market price. He may not demand the value of the com when converted into marketable live stock for that was not the contract of the parties and could not have been in contemplation of both at the time of the sale. It was probably not in the mind of either at that time.

Plaintiff having put it out of his power to comply with the express contract as to the time and method of ascertaining the price which defendants should pay, the principle of quasi contract announced in the case of Booker v. Wolf, 195 Ill. 365 (370) applies by analogy:

“It is also insisted that the action will not lie because there cannot be at the same time an express contract and an implied one respecting the same subject matter. It is true that the law will not imply an agreement in the presence of an express contract of the parties, and if, when the action was brought, there was a Jawful, subsisting express contract of the defendants to pay the plaintiff for-the property with the land and $100 in money, the law would not imply a different agreement. There was no such contract at the time. The defendants had terminated it, and it cannot be said that plaintiff was seeking to recover on an implied contract for something which had been provided for by a valid, existing, express agreement between him and defendants. Defendants cannot be permitted to set up the contract which they had repudiated, to accomplish the fraudulent purpose of preventing such a contract as the law would otherwise imply.”

Much more is said in the opinion relating to principles pertinent to the present case. But the case by analogy illustrates the principle controlling the rights of one in misreliance upon the promise of a party at fault in contracts of this character. Woodward, Quasi Contracts, sec. 10. Such party cannot speculate upon advantage of delay without bearing the full burden if the delay results in detriment to himself. The defendants in this case were willing to accept the hazard under the contract and the risk must be reciprocal. By their contract the right to a price at the time and place of delivery was denied to plaintiff. By the conduct of plaintiff the method of ascertaining the agreed future price was rendered impossible. He had agreed with defendants upon a price depending upon a future event under his control, and by which he evidently expected to profit. It is just and equitable, when his expectation failed, and he refused to establish the standard he had agreed upon, that he should receive only a price that was fair and reasonable at that time. Looked at from the defendants’ situation, it is not less reasonable for their expectations are to be met in the same manner. There is mutuality of right and of obligation. As it is said in some of the cases, the plaintiff is to be put in the same position as if the contract had been performed. That being true, reciprocally the defendants are only bound to that extent.

We must carry out the contract of the parties as they were content to make it. If the vendor was willing to contract that the title to the corn should pass and that the price should be fixed afterward in the manner stipulated, there is no legal obstacle to the arrangement, thereby binding him to fix the price as they had agreed. If all the conditions have not been complied with by the plaintiff, performance of which by the terms of the contract entitled him to the price to be fixed according to the manner stipulated, if he afterward broke the contract, or did any act rendering it impossible to fix it as agreed, he cannot thereby gain any advantage over the purchaser or increase the purchaser’s obligation. Gaged by the known motives influencing human conduct, it is not likely this case would be here, at least in this condition, if the price of com had advanced instead of declining.

It is true that by the act of the plaintiff in refusing to perform, there was no contract fixing the price. That being so, the law supplies the lack. It does not say what the price shall be, but affords relief by al- . lowing a price as if there were a valid subsisting contract as to the price. Board of Highway Com’rs v. City of Bloomington, 253 Ill. 164 (173); People v. Dummer, 274 Ill. 637 (641-42). As in any like case, the price is a fair cash market price at the time it was due under the contract, and when he would be entitled to it.

Again, looking at the plaintiff’s conduct in committing a breach of his contract as to the method by which the price was to be fixed, if defendants were compelled to pay the market price obtaining at the time of the sale, they ought to have an action for damages for plaintiff’s breach. Conjecturally, the measure of recovery would be the difference between the price of corn at the time it was sold and what it was at the time he fed it to his hogs. The fortune of plaintiff would be no greater at the end of that litigation than at the end of this. By holding as we do, circuity of action is avoided and the principles of law governing the contractual relations of the parties are enforced.

Appellant complains of the giving of instructions on behalf of defendant. Those numbered 2, 3, 4, 6 and 7 are said to be erroneous because they do not authorize a verdict upon facts falling within the terms of the agreement relied on in the affidavit of merits, and for other reasons. We have read carefully all of the instructions given for both parties. If all that is said =of the instructions on behalf of defendants be conceded to be valid objections, the same criticism may with equal force be charged against those given on behalf of plaintiff. We think some of the instructions given on behalf of both parties were of little value as aids to the jury in reaching a verdict. The object of instructions is to aid the jury, uninformed as juries are, as to the method of looking at evidence and in ascertaining and applying the law to the facts in controversy. Several of them could be of no assistance, and at the same time were not, generally, of such character as to mislead the jury. Keeping in mind that the question presented by defendants was, whether they were to pay such a price as plaintiff should sell the remainder of his com for after selling defendants theirs, what was the meaning of the contract? Instruction 18 given for plaintiff told the jury that, in passing on that question, such agreement “would require the plaintiff to sell on the market only a reasonable amount of the remainder of the com which he had on hand for the fixing of the price to be paid by defendants to him for the corn sold to them and that he was not required to sell all the corn remaining on hand after the delivery of the com sold to defendants.”

It was not an interpretation of the contract but a perversion of it. If, as defendants pleaded and as the evidence shows, the contract was to pay such a price as plaintiff should sell the remainder of his corn for, it did not mean he should only sell a reasonable amount. The contract voluntarily made might in its execution disappoint his expectations and prove very unsatisfactory, but it was binding on the parties and fixed their obligations. Walker v. Tucker, 70 Ill. 527; Balance v. Vanuxem, 191 Ill. 319.

Instruction 19 ignores the case stated by plaintiff in his affidavit of merits and authorizes a verdict on grounds not stated in it. By it, the jury were told the burden of proof was upon plaintiff “to show by the preponderance of the evidence the number of bushels of corn sold by him to defendants and the price plaintiff was entitled to receive therefor, either as fixed by the terms of a contract between the plaintiff and defendants or, in the absence of a contract, the fair cash market value of said com at the time of delivery by plaintiff to the defendants.” The burden was upon plaintiff to prove he sold the quantity of corn stated in his affidavit of claim and that it was sold “at a price of $1.80 per bushel, which the defendants agreed to pay to the plaintiff.” The instruction referred to no such case as plaintiff had stated and was required to prove. There is of course no exception, and could be none, to the giving of these instructions, under the state of the record, but if defendants’ instructions were subject to the criticism directed against them, plaintiff has not sinned less in tendency to mislead the jury and in a failure to aid them. But if instruction 19 were proper in all other respects, it does not correctly advise the jury as to the time when a fair cash market value would be the proper measure of damages. That time, if the damages were to be fixed upon a market price, was the time when plaintiff refused to sell or put it out of his power to sell.

These references are made, not for the purpose of criticism, but to show that plaintiff has put in the record like errors as those charged to defendants. He abandoned completely the theory of his right to a recovery stated in his affidavit of merits. In so far as the instructions undertake to inform the jury as to measure of damages in the absence of an express contract, they state an improper measure and ought to have been refused. They conflict with those given for defendants stating the rule which we have held to be the correct rule. We think the case ought not to be reversed on account of the instructions.

It is not made to appear how, or upon what principle plaintiff could recover anything upon the record he made by averment and proofs. They did not correspond. A plaintiff cannot recover by proof of a different state of facts from that stated in his declaration as restricted by the affidavit of his claim. He stated a case based upon one theory and sought to prove a case based upon entirely different theories, both as to substance and elements of damages. As to the tender, it was sufficient. The proof of it was complete. If there were a defect in verbiage of defendants while making the tender, but we hold there was not, it comes to nothing for it is clear plaintiff would not accept it.

The judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Shurtleff

text:
    Frederick I. Judson and Thomas E. Gillespie, Guardian ad Litem, Defendant in Error, v. First Trust and Savings Bank of Springfield, Illinois, and L. F. McCullough, Plaintiffs in Error.
    Gen. No. 7,826.
    1. Equity — right of complainant to dismiss bill. The rule that the right to dismiss a bill is absolute in all cases where there is no cross-bill filed is subject to the exception that where an accounting is the basis of the action, a defendant may have affirmative relief without filing a cross-bill and is entitled to object to dismissal.
    2. Equity — affirmative relief to defendant without cross-bill. Whenever there is a decree to account or the pleadings, by admissions, make an accounting necessary, the defendant may have the affirmative relief upon the account, upon answer, without cross-bill filed.
    3. Guardians ad litem and next friends — propriety of allowance to guardian ad litem without proof. It was error to make an allowance to a guardian ad litem in the amount of ?150 without proofs offered to support the charge.
    4. Costs — propriety of imposition upon defendant after dismissal of bill. Where bill by beneficiary of spendthrift trust was dismissed on motion of the complainant at costs of the complainant, court erred in then proceeding to take jurisdiction of matters set out in the bill of complaint and ordering one of the defendants as trustee to pay the costs of the proceeding including the guardian ad litem fee.
    5. Trusts — costs of suit by beneficiary held not chargeable to

      estate. In suit by beneficiary of spendthrift trust involving accounts of general trustee and supervising and disbursing trustee, held that the record was barren of any inference or suggestion appealing to a court of equity upon which costs incurred by complainant should be chargeable to the estate, suit having been dismissed on application by the complainant.
    Error by defendants to the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded with directions.
    Opinion filed October 27, 1925.
    Rehearing denied December 16, 1925.
    Bangs & Frankhauser, for plaintiffs in error.
    Jacob Levy, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.

On the 19th day of December, 1923, the defendant in error, Frederick I. Judson, filed his bill of complaint in the Sangamon county circuit court to construe the last will and the codicil thereto of Juliet E. Jones, deceased, to remove the plaintiff in error, L. F. McCullough, as supervising and disbursing trustee under said will and codicil, and for an accounting, making the First Trust and Savings Bank of Springfield, Illinois, and said L. F. McCullough defendants thereto.

The complainant among other things alleges that one Juliet E. Jones, deceased, by her last will and codicil, duly probated, created a spendthrift trust for the benefit of Frederick I. Judson, the defendant in error, with the First Trust and Savings Bank of Springfield, general trustee, and Charles B. Ayers, supervising and disbursing trustee, and with L. F. McCullough, plaintiff in error, as his successor, and that the trust estate amounted to approximately the sum of $44,000, and the income therefrom to approximately the sum of $2,000 a year; that Charles B. Ayers died about September 1, 1920, and that the said L. F. McCullough then succeeded said Charles B. Ayers as such supervising and disbursing trustee, and has been acting as such since that time; that the said L. F. McCullough since September 1, 1920, received the entire income from said estate, paid out a portion thereof to and for the benefit of said Frederick I. Judson, and appropriated a large portion of the said income to his own use.

The said last will provides in part as follows:

“I give, devise and bequeath to the First Trust and Savings Bank, of Springfield, Illinois, a corporation of the State of Illinois, as trustee and in trust for the purposes hereinafter set forth, all the estate, real and personal, which I may own at my death, with full power to convert into money any and all such estate that may not be in income bearing securities at the time of my death. * * *
“I desire the income to be used for the support and maintenance of my beloved son Frederick I. Judson, either by direct expenditure by the trustee for him or by payment into his hands in weekly or monthly installments in person and not upon any verbal or written order by my said son, nor upon any assignment, and I direct that my son shall have no power to sell, mortgage or otherwise encumber any interest in the said estate or the income thereof nor to give any assignment or order for the proceeds thereof or the income thereof, but the said sales, mortgages, encumbrances, assignments and orders shall be absolutely null and void and the trustee shall not pay any money on account thereof and the estate so held in trust or the income thereof shall not be subject to any attachment, garnishment, creditor’s bill or legal or equitable process for the collection of any debt or damages against my said son.”

And the said codicil provided in part as follows:

“It is my further request that my nephew, Charles B. Ayers, shall have personal supervision of my beloved son Frederick I. Judson to receive from the trustee the monthly allowance provided for and account for same by proper receipts for money and vouchers for supplies purchased and in case of the death of said Charles B. Ayers, then it is my wish that same arrangements be continued by L. F. McCullough, son-in-law of my said nephew Charles B. Ayers. In other respects I confirm said will.”

Plaintiff in error, First Trust and Savings Bank of Springfield, Illinois, appeared in said cause and filed ' its answer admitting the making of the said will and codicil, and the bequeathing of the property therein mentioned, in trust; that the will and codicil were admitted to probate, and it appointed executor and took possession of the- $44,000-trust estate, and then had it on hand, and that the income therefrom approximates $2,000 annually; that Charles B. Ayers died September 1, 1920, and that since then said L. F. McCullough has been paid, by it, the proceeds and income of said trust estate, excepting about $600, for the benefit of the said Frederick I. Judson; states that on account of the mental incapacity of said Frederick I. Judson it believed it was justified in considering an extraordinary need had arisen, and in pursuance thereof so paid the entire income arising from said trust fund; admits that said L. F. McCullough has furnished to it as trustee various vouchers and bills in order to secure from it the income from said trust estate, but has no knowledge as to whether or not the vouchers represented actual expenditures by McCullough.

Plaintiff in error, L. F. McCullough, appeared and filed his answer which admits the execution of the will and codicil and its probate; admits that Charles B. Ayers died about September 1,1920; that from time to time since then said First Trust and Savings Bank as trustee has paid to him money out of the income of said trust estate, to be applied to the benefit of complainant; denies that he has in any maimer or to any extent misappropriated any of such money, but that he has used it all for the benefit of said Frederick I. Judson; and goes into some detail as to his trusteeship and expenditure of the money; admits that he has furnished the said First Trust and Savings Bank various vouchers, bills, etc., of expenditures by him of the income paid to him; denies that said vouchers, bills, etc., did not represent actual expenditures made by him for the benefit of the said Frederick I. Judson; and denies that he secured from said First Trust and Savings Bank any money, in equity or otherwise, belonging to the said Frederick I. Judson which he has kept and appropriated to his own use, but states the fact to be that for all vouchers, bills, etc., he has made actual expenditures for and on behalf of the said Frederick I. Judson; denies that he at any time neglected or refused to advance for the use of said Frederick I. Judson any funds that he received from said trust estate; denies that he has failed to use the income of said trust estate, so far as the same came to him, for the benefit of the said Frederick I. Judson; states that the said Frederick I. Judson is a person of unsound mind and incompetent.

Beplications were filed and the court appointed one Thomas E. Gillespie guardian ad litem for the said Frederick I. Judson, and referred the cause to a master in chancery of that court to take evidence in the matters in issue in the original bill and report the same, together with his conclusions thereon, to the court.

On the 12th day of May, 1924, the said defendant in error and his guardian ad litem filed a petition to set aside the order appointing the guardian ad litem, and for an order on the said First Trust and Savings Bank to pay money into court for the use of the said Frederick I. Judson pendente lite, and on the 13th day of May, 1924, the court referred said petition to the master in chancery, with the matter then before the master; and on hearing before the master in chancery testimony was heard on the issues involved (including an accounting) and exhibits, vouchers, etc., introduced in evidence. On the 21st day of June, 1924, on motion of defendant in error and his guardian ad litem, without notice to the defendants, and in their absence, the court dismissed the suit, at the complainant’s costs, and entered the following order: that the suit be dismissed upon complainant’s motion and at ’ complainant’s costs; that the guardian ad litem’s fee be fixed at $150 and it was ordered that plaintiff in error, the First Trust and Savings Bank, pay the costs of the case, including the guardian ad litem’s fee, to the clerk of the court out of the income fund in its hands, and it was further ordered that the complainant, Frederick I. Judson, have leave to withdraw the record of evidence taken before the master and that the parties filing exhibits have leave to withdraw the exhibits respectively. The costs of the case aggregated $869.28. Plaintiffs in error have brought the record to this court on a writ of error and assign error.

Two principal questions are raised by plaintiffs in error and there is error assigned upon each: First, did the court below have authority to permit defendant in error to dismiss his bill of complaint, based upon an accounting; and second, was it error to decree the payment of costs to be paid out of a spendthrift trust, upon dismissal of the bill.

Defendant in error contends that the right to dismiss a bill is absolute in all cases where there is no cross-bill filed. There seems to be an exception to this rule. In a case where an accounting is the basis of the action, a defendant may have affirmative relief upon the account without filing a. cross-bill, and the action is construed as if each was a party in the bill against the other. Acme Copying Co. v. McLure, 41 Ill. App. 397; Thomas v. Turner, 157 Ill. App. 21; Clinton v. Winnard, 135 Ill. App. 278; Iglehart v. Crane & Wesson, 42 Ill. 271; Nyburg v. Pearce, 85 Ill. 393; Athinson v. Cash, 79 Ill. 53, and Metzger v. Emmel, 289 Ill. 59.

Whenever there is a decree to account or the pleadings, by admissions, make an accounting necessary, the defendant may have the affirmative relief upon the account, upon answer, without cross-bill filed. There is an exception to the rule in equity that “in the absence of a cross-bill the complainant has the right, on the payment of costs, to dismiss his bill at any time before final decree,” when the proceeding to account has reached the stage when the parties have been ordered to account to each other. Wilcoxon v. Wilcoxon, 111 Ill. App. 90.

In Atkinson v. Cash, supra, the court held: “The fact that no cross-bill was filed by the Eamshaws can make no difference. A court of equity has the power on a bill to settle a copartnership matter of this character, to render such a decree as the equity of the case may require.” And the rule extends to the settlement of accounts between principal and agent. Atkinson v. Cash, supra.

It was held in Thomas v. Turner, supra (p. 21):

“It is claimed however, by appellant, that Vogt is not entitled in this suit to any decree granting him affirmative relief for the reason that he filed no cross-bill asking for the same but relied entirely upon his answer. Appellant by his bill prayed for an accounting, claiming there was a balance due him, while Vogt, by his answer, claimed there was a balance due him from appellant. It is a universal rule that upon a bill in equity for an accounting, the party against whom the balance is found will be decreed to pay it and that no cross-bill is necessary. Acme Copying Co. v. McLure, 41 Ill. App. 397; Clinton v. Winnard, 135 Ill. App. 274; Atkinson v. Cash, 79 Ill. 53.”

This we conclude is the universal rule and applicable to this case. In Wilcoxon v. Wilcoxon, supra, the court held:

“It is a general rule of equity practice in this State that where no cross-bill has been filed, complainant has the right, at any time before final decree, to dismiss bis bill upon payment of costs. The rule prevailing in some jurisdictions, that a chancellor may at his discretion refuse to allow complainant to dismiss his bill where such action is likely to work a hardship to defendant, is not recognized or followed in this State. Reilly v. Reilly, 139 Ill. 180; Langlois v. Matthiessen, 155 Ill. 230; Bates v. Skidmore, 170 Ill. 234. But a bill for an accounting which has reached a decree that the parties do account with each other, must be regarded as an exception to the general rule. In such a suit, a defendant need not file a cross-bill to entitle him to a decree in his favor for any sum that may be found due him from the complainants or from a codefendant. Atkinson v. Cash, 79 Ill. 53; Nyburg v. Pearce, 85 Ill. 393. In speaking of the record before us, the Supreme Court in Wilcoxon v. Wilcoxon, 199 Ill. 244, said:

“ ‘If the accounting, when taken in pursuance of the scope and prayer of the bill, shows the complainant to be indebted to the defendant, whom he has brought into court for the purpose of having the accounts between them judicially investigated and adjusted, the court will decree payment by the complainant to the defendant accordingly, and that without a cross-bill on the part of the defendant. The benefit of the prayer of the bill is extended to the defendant as well as to the complainant, as to all matters within the scope of the bill. The bill praying an accounting implies an offer to pay whatever, if anything,, should be found due from the complainant to the defendants. In bills in equity for the dissolution of copartnerships and for an accounting between the partners as to the partnership affairs, all the partners are regarded as actors, and the accounts between them as partners are stated and the rights of each partner determined and enforced in the same manner, whether appearing as complainant or defendant in the pleadings.’ ”

And it was further held in Wilcoxon v. Wilcoxon, supra:

“The rule that a, defendant to a bill for an accounting need not file a cross-bill in order to entitle him to relief by decree in his favor, if the statement of the account shows complainant indebted to him, would be a mere mockery if complainant could dismiss at Ms own pleasure.at any time before the result of the account in defendant’s favor has been embodied in a final decree. Self-interest would impel a complainant to dismiss Ms bill as soon as he discovered from the state of the proofs that the result would be against him. In the present case the bill was filed in 1890, and alleges that the partnersMp transactions ceased about March 1, 1888. If the dismissal of this bill is sustained it may well be that the statute of limitations would bar a suit by defendant against complainants for an accounting and settlement of the partnership affairs. Defendant having by the decree to account obtained the position of an actor, entitled to an affirmative decree in his favor if the accounting should justify it, ought not without his consent to be deprived of that position and subjected to the risk of being defeated by the statute of limitations in any suit he might hereafter bring concerning the same matter.”

It is strenuously insisted that the rule laid down in Wilcoxon v. Wilcoxon, supra, is not the law applicable to this case for the reason that plaintiff in error by answer did not pray for an accounting, and that, even if plaintiff in error had expended his own funds in behalf of defendant in error, in addition to the income of the estate, and had improperly advanced moneys to defendant in error, as charged in the answer, yet he, plaintiff in error, could not recover, “as he could not be permitted to do what a stranger could not do, namely, obligate defendant in error beyond the terms of the spendthrift trust.” As to the answer, it may contain no specific prayer for affirmative relief by plaintiff in error. Such a prayer is not required. Plaintiff in error, by his answer, admitted such facts of the bill of complaint that made an accounting necessary. The answer demed the misappropriation of any of the funds or income, and specially averred how the funds had been expended, and plaintiff in error averred that in addition thereto he had advanced large sums of money of his own for the care and support of defendant in error. Affirmative relief to the defendant upon answer in such a case is not based upon the prayer in the answer but upon the prayer in complainant’s bill of complaint, by which complainant impliedly obligates nimself that in praying for equity he will do equity.

In the master’s report submitted to the parties before the dismissal of the cause, it was found that plaintiff in error, McCullough, had received in income from the trustee of said estate the sum of $6,824.14 and had accounted before the master for the expenditure of the sum of $7,069.56 for the care, maintenance, use and benefit of defendant in error. This was not properly a part of the record in this case and we have considered it only as a matter of illustration. Whether plain-, tiff in error under the terms of the will could charge the trust fund for advancements, we are not called upon in this ease to decide. Whether plaintiff in error, in any event, could have affirmative relief in this cause for a decree against defendant in error, or the fund, is not the only question at issue. Plaintiff in error was called upon to account and an accounting has been had, in pursuance of said bill of complaint, before the master. Plaintiff in error is entitled to the benefit or result of that accounting, at least to the extent that he received and expended funds from the estate as though he had filed a cross-bill and the court below was in error in permitting said cause to be dismissed without the consent of plaintiffs in error. Án allowance was made to the guardian ad litem in the amount of $150 without any proofs offered to support the charge. This was error. Wright v. Upson, 303 Ill. 146. In the decree the court ordered the bill dismissed at the costs of the complainant and then proceeded to take jurisdiction of the matters set out in the bill of complaint and ordered plaintiff in error, the First Trust and Savings Bank, as trustee under the will, to pay the costs of the proceeding, including the guardian ad litem fee, amounting to the sum of $869.28. This was error. Prather v. Lewis, 287 Ill. 305. The bill could not be dismissed, either without prejudice or for the want of equity, and at the same time the decree grant complainant affirmative relief based upon the allegations in the bill. With the testimony and proceedings before the master withdrawn from the record and not appearing in the record in the case, there is substantially nothing except the fee allowed the guardian ad litem in the record to support such a charge for costs. We would not be understood as holding that a cause could not arise, under the terms of the will in question and affecting the spendthrift trust established in behalf of defendant in error, where it would be equitable to charge the corpus or income of the estate with the costs of a proceeding instituted by defendant in error, but, so far as the record before this court is concerned, it is barren of any inference or suggestion appealing to a court of equity upon which the costs incurred by defendant in error should be chargeable to the estate. Congress Hotel Co. v. Martin, 312 Ill. 318. The order dismissing said cause should be vacated and the decree of the circuit court of Sangamon county reversed and the testimony and proceedings taken and had before the master in chancery refiled, and the cause proceed in that court in an orderly manner. The decree of the circuit court of Sangamon county is therefore reversed and the cause remanded with directions to vacate said order of dismissal and redocket said cause, and that the testimony, proceedings and exhibits be refiled with the master in chancery and that the cause proceed.

Reversed and remanded with directions.


text:
    The Farmers State Bank and Trust Company of Jacksonville, Illinois, et al., Appellants, v. Ethel May Rayborn, Executrix of the Last Will and Testament of Henry S. Rayborn, Deceased, et al., Appellees.
    Gen. No. 7,836.
    1. Former adjudication — decision concerning claim held not res adjudicata. Contention that matter of claim of widow was res adjudicata was without merit where executrix on remand of record from Appellate Court did not take a decree upon her petition, but by reason of a new situation filed an amended petition and dismissed the old petition.
    2. Estates of decedents — allowance of claim is only prima facie evidence against heir. The allowance of a claim in the county court against the administrator is only prima facie evidence against the heir, and he can contest its allowance on application to sell real estate.
    3. Estates of decedents — jurisdiction to determine equities on proceedings to sell lands. Proceedings by administrator to sell land to pay debts in the county and circuit courts is a statutory proceeding, and neither court acts as a court of chancery or can determine equities except as authorized by the statute.
    4. Dower — duty of representative as to assignment. There is no duty devolving on an administrator or executor to cause dower to be assigned before applying for an order to sell real estate to pay debts, such duty resting upon the heir, under Cahill’s St. ch. 3, lif 102, 132, and ch. 41, 18, 44.
    5. Dower — county court cannot coerce representative to cause dower assignment. Cahill's St. ch, 3, If 132, does not give county court power to coerce an administrator or executor to cause dower to be assigned.
    6. Estates of decedents — chancery jurisdiction to restrain sale of land under order of county court. Since county court has no power to require administrators and executors to assign dower and homestead, court of equity has jurisdiction of a bill to enjoin a sale of land subject to dower and homestead and to compel an assignment of dower, the complainant having no other complete and adequate remedy.
    7. Estates of decedents — jurisdiction over testamentary trusts. Courts of equity will take jurisdiction over testamentary trusts and preserve the estate from destruction or interference, and in a proper case, where the trustee does not have a complete or adequate remedy at law, enjoin proceedings at law and take over the settlement and adjustment of the probate of the estate.
    Appeal by plaintiffs from the Circuit Court of Morgan county; the Hon. Nobman L. Jones, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded with directions.
    Opinion filed October 27, 1925.
    John J. Reeve, for appellants.
    L. H. Jonas and Bellatti, Bellatti & Moriarty, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellant, The Fanners State Bank and Trust Company of Jacksonville, Illinois, devisee and trustee, of a testamentary trust, under the last will and testament of Henry S. Rayborn, deceased, as trustee, together with the cestui que trustents, averring that proceedings were pending in the county court of Morgan county, brought for the purpose of and tending to the destruction of said trust estate, presented their bill of complaint to the circuit court of Morgan county, on the chancery side of the court, to set off the homestead estate and to admeasure and cause to be assigned the dower rights of Ida E. Raybom in and to the lands of her husband, Henry S. Raybom, deceased, and for other relief. There was a demurrer to the bill, the court sustained the demurrer and appellants electing to stand by the bill, it was dismissed for want of equity and appellants have appealed.

The charges in the bill are substantially as follows: Henry S. Rayborn died testate in said county about April 24, 1923, leaving a widow, Ida E. Raybom, and one daughter, Ethel May Rayborn, a single lady, Ms only heirs at law. Testator died seized of premises situated in the City of Jacksonville, which he and his wife, Ida E. Rayborn, occupied as a homestead, estimated in the inventory to be of $5,000 in value, and another house and lot in said city estimated to be of the value of $3,500. There were 138% acres of farm lands in Greene county of the estimated value of $5,540, and the so-called “Kennedy Farm” in Morgan county, consisting of 208% acres, estimated in the inventory to be of the value of $20,850. There was personal estate to the amount of $518. Testator left a last will and testament which was duly proven, by which he devised the use of his entire estate to his widow, Ida E. Rayborn, for the term of her natural life. Subject to the life use of the widow, testator devised the 208% acres known as the “Kennedy Farm’’ to the Farmers State Bank and Trust Company of Jacksonville, one of the appellants., in trust, with directions to collect the rents, issues and profits thereof and to pay the same to his daughter, Ethel May Ray-born, during her natural life, and in case the said daughter should die without issue, then that the said trustee should convert the said lands into, cash and pay one-half thereof to the Odd Fellows’ Orphan Home at Lincoln, Hlinois, and the other one-half to the Odd Fellows’ Old Folks’ Home at Mattoon, Illinois. In case said Ethel May Rayborn should die leaving issue, the property in trust was to descend to them. Ethel May Rayborn was made the residuary legatee and devisee and named as executrix in the will. The executrix filed an appraisement bill and there was an award allowed to the widow in the sum of $1,500, and there were claims paid by the executrix and allowed, amounting to the sum of $1,342.58.

There has never been any agreement or proceedings taken to assign homestead and dower in the lands to the widow until the filing of this bill. The widow, Ida E. Raybom, presented a claim against the estate in the sum of $17,392.45 to the county court, which, with the consent of the executrix, was allowed. Thereafter, the executrix presented her petition to the county court of Morgan county for leave to sell the “Kennedy Farm” lands to procure funds with which to pay debts, and upon a hearing the county court of Morgan granted a decree, directing that said 208% acres specifically devised to the appellants should be sold and the proceeds thereof, so far as necessary, be applied to the payment of the debts of said estate. To the said petition appellants entered a demurrer and a motion to set aside the claim allowed to the widow, Ida E. Raybom, both of which were overruled by the court. That decree was reviewed, on appeal by appellants, in this court at its April term, A. D. 1924, and reversed for errors appearing on the record and remanded for further proceedings. [234 Ill. App. 183.] It appears from the bill filed that, upon the redocketing of the cause in the lower court, the widow, Ida E. Rayhorn, renounced under the will and accepted the portions of her husband’s estate provided for her by statute. Thereafter, on August 24, 1924, the executrix filed in said county court an amended petition for an order to sell real estate to pay debts, and averring in said petition the widow’s homestead estate and right of dower in all of the lands of which testator died seized, and praying that the lands, other than those devised in trust, should be sold first, but that all of said lands, if necessary to pay debts, should be sold subject to the widow’s homestead estate and right of dower.

Appellants answered the petition, admitting the truth of certain facts charged and that the widow was entitled to a homestead estate and dower in said lands, and averred the facility and propriety of assigning dower in the “Kennedy Farm” lands and other lands, but appellants denied that the lands should be sold subject to the widow’s right of dower and homestead estate and averred that to sell said lands subject to homestead and dower rights would amount to a sacrifice of the entire lands, leave nothing but a lawsuit for a purchaser to buy, and that the ultimate result of the allowance of said claim and the granting of said petition would be the destruction of said trust. It was further charged in the answer to said petition and in the bill herein, that “the purported claim of Ida E. Eayborn for $17,392.45 was not a just claim against said estate and that its allowance was procured by collusion between the said Ida E. Eayborn and the executrix, Ethel May Eayborn, for the sole and only purpose of a basis for selling lands to pay debts and to procure the sale of the lands specifically devised in trust. ’ ’

The bill avers that a hearing was held upon said petition on the 25th day of November, 1924, and a decree granted, finding the identity of the widow’s homestead, and that the lands were worth in excess of $1,000 and were not subject to division and ordering the homestead lands sold and the sum of $1,000 from the proceeds thereof to be paid to the widow. The decree further finds that the widow has not consented to the sale of her estate or dower in said lands, and all of the lands of testator were ordered to be sold, subject to the dower rights of the widow in said lands, to pay the debts as in the bill set out, and in the order, as prayed for in the petition. Appellants thereupon presented this bill of complaint, praying for the assignment of the homestead estate and the admeasurement and assignment of dower, and appellants prayed that a court of equity take over the settlement of the estate and for an injunction against appellee and said widow further proceeding in the county court.

Appellees contend in support of the demurrer to said bill that the matter of the claim of Ida E. Baybom was res adjudicatait having been passed on by this court in the former hearing, and that the county court in ordering the lands sold subject to dower merely followed the law applicable to county courts. As to the first contention, it might have some merit as to the claim if the executrix, on the remand of the record from this court, had taken a decree upon her original petition. However, a new situation had arisen and the executrix filed an amended petition and dismissed the petition upon which this court had heard the case. The allowance of a claim in the county court against the administrator is only prima facie evidence against the heir and he can contest its allowance on application to sell real estate. (Stone v. Wood, 16 Ill. 177; Atherton v. Hughes, 249 Ill. 326.) Appellees, by abandoning their original petition, afforded appellants a new opportunity to attack the claim. As to appellees’ second contention, cases are cited where it has been held within the law to decree the sale of lands to pay debts, subject to dower rights. Kenley v. Bryan, 110 Ill. 652, is cited, but in that case dower in all the lands was set off to the widow and the other lands were sold free from dower rights and the dower lands, separately, were sold subject to dower. This proceeding was attacked several years later by a bill called a bill of review, but which the court denominates a bill to impeach a decree for fraud. Mo objections were made by any of the parties while the proceedings were pending. Oettinger v. Specht, 162 Ill. 179, is cited. In this case the petition of the administrator prayed that the dower and homestead of the widow should be set off and commissioners were appointed who reported that dower could not be set off and assigned to the widow without manifest prejudice to the parties in interest, and the lands were sold subject to dower. In this case there were no objections made while the cause was pending and no question was raised until about three years later when one of the heirs having died, the administrator of her estate sued out a writ of error from the Supreme Court and the court based its opinion solely upon Henley v. Bryan, supra. Section 101 of chapter 3 of the Eevised Statutes [CahiH’s St. ch. 3, 102] provides that the (county) court “may, with the assent of the person entitled to an estate of dower, * * * sell such real estate with the rest.”

Under section 44 of the Dower Act [Cahill’s St. ch, 41, [[ 44], the county court is given jurisdiction “on the petition of the executor, * * * or of the person entitled to dower and homestead, * * * to cause the dower and homestead, or either, to be assigned,” but in that case the lands assigned as dower could not be sold free of dower without the consent of the widow. There are no other provisions of the statute authorizing the assignment of dower or the sale of lands, freed from the right of dower, in a proceeding for the sale of real estate to pay debts in the county court. There are cases to be found where lands have been sold subject to dower and the sale has been upheld, and appellees contend that the law does not require the widow to assign any reason, either for her consent to the sale of her dower or for her refusal, to consent to such sale.

In no case arising from a sale of real estate in the county court do we find that the precise question, as to whether the county court can compel an assignment of dower, has been determined. It has been determined that the proceeding by administrators to sell land to pay debts in the county and circuit courts is a statutory proceeding, and that neither court acts as a court of chancery or can determine equities, except as authorized by the statute. Moline Water Power & Mfg. Co. v. Webster, 26 Ill. 234; Cutter v. Thompson, 51 Ill. 390; Bursen v. Goodspeed, 60 Ill. 283; Moffitt v. Moffitt, 69 Ill. 641, and Therens v. Therens, 267 Ill. 592.

“It has been repeatedly held by this court that the lands of one dying intestate descend to the heir; and although it is subject to the payment of debts and may afterwards be divested by decree and sale of the administrator, the heir is nevertheless owner and entitled to the rents and profits in the meantime. The administrator, therefore, takes neither an estate, title nor interest in the realty.” Smith v. McCownell, 17 Ill. 141; Phelps v. Funhhouser, 39 Ill. 405. The principle laid down in these cases has been approved in Hoyt v. Northup, 256 Ill. 606, and in Anderson v. Shep ard, 285 Ill. 548. And it was held in the earlier cases that the administrator took the lands just as they descended, “but it has not been granted him to try experiments and involve the estate in protracted and expensive litigation under the pretext of removing incumbrances on the estate with a view to a better price when he shall offer it for sale, under an order of court. He must take the estate as he finds it and, if incumbered, his plain duty is to sell it subject to the incumbrance. By so doing, he discharges his whole duty and for the consequences, he himself acting fairly and according to law, is in no wise responsible.” Phelps v. Funhhouser, supra; Smith v. McConnell, supra. In Smith v. McConnell, supra, at page 142 the court held:

“A very forcible argument was offered to show how beneficial it might be to so change the law as to allow administrators to do so, for the purpose of preventing sacrifices by selling under such circumstances of suspicion upon the title, since they have power to dispose of the whole fee. The object is a Worthy and meritorious one, well calculated to promote the interests of both creditors and heirs. And had the heir filed his bill to enjoin a sale by the administrator at a sacrifice, until he could remove such depreciating influences with a bona fide offer, with convenient speed to do so, a much stronger ground for equitable interference would have been presented.”

And in Phelps v. Funhhouser, supra, at page 406 the court say:

“If it be desirable to expose this property so mortgaged, as charged in the bill of complaint, to sale for the payment of debts, the course to pursue is clearly intimated in the case of Smith v. McConnell above cited. The administrator should obtain an order to sell it and, to prevent the anticipated sacrifice, the heir might enjoin the sale until he could make an effort to set aside the mortgage. We see no other course, as the law now stands, which could be adopted to prevent the disastrous consequences resulting from a sale of property mortgaged to its full value and the mortgage alleged to be invalid.”

Thus stood the old law which gave “no power to an administrator to involve an estate in litigation under a pretense of removing an incumbrance with a view to a better price when it shall be offered for sale to pay debts.” Cutter v. Thompson, 51 Ill. 390. The Act of 1857 somewhat modified the former law.

“It was only intended to confer upon them and upon the circuit courts the power to apply for a sale of land of which the intestate did not, technically, die seized, but such to which he had a claim of title. Such claim was to be investigated by the court in the mode pointed out in the statute, and if found to exist, then an order might be obtained to sell it.” Cutter v. Thompson, supra.

Section 101 of the Administration Act was passed' in 1887, as it exists, at the present time, and the court is given power to settle and adjust all equities and to order the land sold disincumbered of the dower with the assent in writing of the person entitled to an estate of dower, in which case the value of the dower shall be ascertained and paid in cash. This section as amended has been construed in Therens v. Therens, 267 Ill. 598. Section 44 of the Dower Act provides that the county court may, in a proceeding to sell land to pay debts, cause the dower and homestead to be assigned in the same proceeding on the petition of the administrator or executor, or the person entitled to dower. There is no duty devolving on the administrator or executor to cause dower to be assigned. That duty rests upon the heir. (Section 18 of the Dower Act, Cahill’s St. ch. 41, If 18.) Section 130 of the Administration Act [Cahill’s St. ch. 3, ff 132] gives county courts power to make all necessary orders to coerce executors and administrators to make application to sell lands for the payment of debts and legacies, when the same is necessary, but there is no provision in the statute by which the court can coerce such officers to cause dower to be assigned. Such an order, in the opinion of this court, is of the same nature as the order of the county court in Hannah v. Meinshausen, 299 Ill. 525, requiring a bidder for lands to complete his bid or holding him in contempt of court, on failure to complete his bid. It was held that this was the exercise of general chancery jurisdiction, and the county courts were not clothed with such powers. (Clayton v. Clayton, 250 Ill. 433; Sebree v. Sebree, 293 Ill. 229.) If county courts are not clothed with power to require administrators and executors to assign dower and homestead, as we have indicated, then appellants do not have a full, complete and adequate remedy at law in the proceeding set out in the bill, in the county court of Morgan county. Appellants cannot demand the assignment of dower, either under section 101 of the Administration Act or under section 44 of the Dower Act. In a partition suit, Grote v. Grote, 275 Ill. 209, it was held error to sell the lands subject to dower and without dower having been assigned, over the objection of the heir or devisee. In this situation appellants have filed their bill to cause dower and homestead to be assigned to the widow, Ida E. Eayborn. From the early history of our courts it has been an elementary principle that courts of. equity and of law would exercise concurrent jurisdiction in the assignment of dower. (19 Corpus Juris 555; Blain v. Harrison, 17 Ill. 384; Turney v. Smith, 14 Ill. 242; Osborne v. Horine, 17 Ill. 92; Rmghouse v. Keever, 49 Ill. 470; Simpson v. Ham, 78 Ill. 203; Burns v. Miller, 110 Ill. 242; Coburn v. Herrington, 114 Ill. 104; Hart v. Burch, 130 Ill. 426 and Lavery v. Hutchinson, 249 Ill. 89.)

Appellees having taken no steps to have dower and homestead assigned to the widow, appellants’ bill of complaint did charge a ground of equity for the ad-measurement and assignment of dower and homestead. Under the allegations of the bill of complaint, for the reasons as fully set out in the opinion of this court in Gen. No. 7,837, ante, p. 482, at this term of the court, it is the opinion of the court that the provisions of the decree in that case as to the sale of the homestead, free and clear of the homestead estate of the widow, without her consent and without the assignment of the same under the statute, was void. We reiterate what is said in the opinion in Gen. No. 7,837:

“There has never been any authority to forcibly extinguish a homestead estate in lands where the same were not susceptible of division and the value of the lands exceeded the sum of $1,000, except by following the statute, or under the general chancery powers of a court of equity (Wilson v. Illinois Trust & Savings Bank, 166 Ill. 13; Powell v. Powell, 247 Ill. 438; Macaulay v. Jones, 295 Ill. 618, and Richardson v. Trubey, 250 Ill. 582),” and the bill states a ground of equity for relief as to the homestead premises.

Appellants further urge that a court of equity should administer this estate under its jurisdiction over trusts and it is contended that the administration of estates on account of mismanagement is primarily and originally in courts of equity, citing: Pom. Eq. Jur. (4th Ed.) secs. 1152-1154; Mahar v. O’Hara, 9 Ill. (4 Gilm.) 424; McCreedy v. Mier, 64 Ill. 495; Heward v. Slagle, 52 Ill. 336; Freeland v. Dazey, 25 Ill. 294; Townsend v. Radcliffe, 44 Ill. 446; Elting v. First Nat. Bank, of Biggsville, 173 Ill. 368; Chapman v. American Surety Co., 261 Ill. 594.

It is elementary that courts of equity will take jurisdiction over testamentary trusts, and preserve the estate from destruction or interference, and in a proper case, where the trustee does not have a complete or adequate remedy at law, enjoin proceedings at law, and take over the settlement and adjustment of the probate of the estate. The .bill in this case stated a ground for equitable relief in the jurisdiction of courts of equity over testamentary trusts.

What we have said makes it unnecessary to prolong this opinion by discussing a further ground of equity. Neither is it necessary to pass upon the question whether the allegations in the bill were sufficiently specific to charge fraud in the matter of the claim of Ida E. Rayborn. We are of the opinion that the bill stated a ground of equity and that the demurrer should have been overruled and appellees given leave to answer the bill.

The decree of the circuit court of Morgan county is reversed and the cause remanded with directions to overrule the demurrer and grant leave to appellees to answer the bill.

Reversed cmd remanded with directions.