author: Mr. Justice McSurely Mr. Presiding Justice O’Connor specially

text:
    Della Price, Defendant in Error, v. M. J. Bailey, Plaintiff in Error.
    Gen. No. 35,608.

      Heard in the first division of this court for the first district at the December term, 1931.
    Opinion filed February 29, 1932.
    Rehearing denied March 14, 1932.

      O’Brien & Hanrahan, for plaintiff in error; Matthew J. O’Brien, of counsel.
    Guerine & Brust, for defendant in error; Guy C. Guerine and Sidney R. Tarkoff, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover damages for injuries she received as the result of a collision between an automobile in which she was riding, driven by her husband, and an autotruck belonging to defendant. Upon trial she had a verdict of $8,000, and from the judgment defendant appeals.

The accident happened about 10:30 p. m., on May 26, 1930, on Roosevelt road, about 150 feet west of the Desplaines river. Plaintiff and her husband were going from Chicago westward to their home in May-wood. They were driving in a Ford automobile, with plaintiff in the front seat on the right-hand side. There were no other passengers. Roosevelt road runs east and west and is about 40 feet wide; the north half of it is divided into two lanes of traffic, each 10 feet wide. As the car in which plaintiff was riding was proceeding westward it ran into the left rear end of defendant’s truck which was headed westward, and plaintiff was injured in the collision.

Plaintiff’s declaration alleged general negligent operation of defendant’s automobile, and in the second count that defendant’s driver wilfully and wantonly caused the collision; the third and fourth counts alleged negligence of defendant in failing to maintain lights on his truck, and the fifth predicated negligence on the part of defendant in allowing his truck to stop and obstruct the highway.

Plaintiff’s version of the occurrence is that after they had passed over the bridge over Desplaines river they were met by an eastbound car which blinded both plaintiff and her husband with its glaring headlights; she closed her eyes and heard her husband exclaim about the lights; plaintiff kept her eyes closed for perhaps a minute, and upon opening them found that their car was about two or three feet from a truck which she testified was standing still at the time, at about the center of the north traffic lane; that her husband tried to turn so as to pass the truck to the left, but that the front part of the car struck the left rear end of the truck. The driver of the defendant’s truck denied that he was standing still at the time, but says that he was going westward at about 8 to 10 miles an hour, running about a foot and a half from the north edge of the road when he felt the jar of the automobile running into his truck.

In view of plaintiff’s admission that just before the collision she was blinded by the headlights of the eastbound car and was “right on the top of the truck” when she saw it, the evidence that the truck was standing still is doubtful.

The controversy seems to be as to whether or not the defendant had a rear light which was lit at the time of the accident. Plaintiff testified that she saw no such light. The driver of defendant’s truck, Alex Reusch, testified that he was employed by defendant and had been hauling dirt in his truck, which was a dump-body type with a cab for the driver; that while hauling a load of dirt and returning to Maywood his left rear tire blew out; that he notified Mr. Bailey, Ms employer, and together they tried to repair the tire but did not succeed, so the dirt was unloaded from Reusch’s truck into a truck driven by Bailey, and Reusch started to drive to Maywood with Ms flat tire, going ahead of the truck driven by Bailey. He testified that both the head and rear lights were regulated by a switch from the inside of the cab, and that before he headed for May-wood he observed that both these lights were burning; that Bailey and his wife followed for a time in the other track and when they came to 31st street Bailey turned off and Beusch continued towards Maywood; he testified that the tail light had been fixed about a week and a half before the accident and that it worked all right continuously thereafter; that after the collision the tail light was not burning although he had not turned it off; that the tail gate of the truck was knocked off and the frame bent a little; that after the accident police officers who arrived at the place turned on the switch of the truck and the headlights burned but the tail light would not burn; that when he, Beusch, started the motor the tail light flickered. Bailey, the defendant, corroborated Beusch, saying that when he followed him, up to the time he left him at 31st street, Beusch’s lights were burning, including the tail light; that after the accident he examined the truck and turned the light on at the switch but it did not burn; that he then worked the socket of the light and then the light worked.

We are of the opinion the evidence did not sufficiently prove that the rear light was not burning at the time of the accident. We have only the testimony of the plaintiff that it was not burning, and this is weakened by her admission that for a minute or so before the accident her eyes were closed, or, as she said, “blinded.” On the other hand, the light was working properly a very short time before the collision, although after the collision it was not burning; but when Bailey screwed the bulb tightly the light worked properly. It is reasonable to infer that the jar of the collision loosened the bulb so as to put out the light.

But even if,' at and just-before the collision, the light on the rear of the truck was not burning, this would not of itself impose liability. In McDermott v. Mc-Keown Transp. Co., 263 Ill. App. 325, we have recently held, under somewhat similar circumstances, that the defendant would not be liable even if the rear light was not lit at the time of the accident if the jury believed from the evidence that the failure of the light was occasioned without negligence on the defendant’s part.

We hold that plaintiff failed sufficiently to prove the charges of negligence in respect to the light, and we also hold that there was no evidence tending to show that the accident was caused by the wanton and wilful operation of defendant’s truck.

The evidence rather leads to the conclusion that the real cause of the accident was the blinding lights of the eastbouild car which passed plaintiff and her husband just before the collision, which prevented them from seeing ahead. Plaintiff admits that her eyes were closed, that she could not see. It is a well known fact that when one is blinded by dazzling light in the eyes one is unable to see for some little time, even after the eyes are op'ened.

We cannot hold that plaintiff was guilty of contributory negligence as a matter of law. Although plaintiff says that she felt perfectly safe when riding with her husband and that she was sitting somewhat in the corner facing to the southwest, yet these facts alone would not prove contributory negligence. The jury could properly conclude that no matter how watchful she may have been, the blinding lights made possible her failure to see defendant’s truck in time.

A special interrogatory was submitted" to the jury as to whether the defendant was guilty of wanton and wilful operation of the truck, which was answered in the affirmative. This was subsequently set aside by the court. It was error to submit such an interrogatory and at the same time give instructions which which might entirely disregard the theory contained in the interrogatory. There was no instruction which explained the difference between a case based upon a charge of general negligence and a charge of wilful and wanton negligence. Nosko v. O’Donnell, 260 Ill. App. 544.

The defendant argues that as the evidence failed to establish that defendant was guilty of wilful and wanton conduct in operating the truck, as charged in the second count of the declaration, the trial court should have set aside the general verdict, citing Grinestaff v. New York Cent. R., 253 Ill. App. 589;. O’Neall v. Blair, 261 Ill. App. 470; Streeter v. Humrichouse, 261 Ill. App. 556. These cases support this point, although they seem to be in conflict with Jernberg v. Mix, 199 Ill. 254; Guiamos v. DeCamp Coal Min. Co., 242 Ill. 278, and contrary to the usual practice. Scott v. Parlin & Orendorff Co., 245 Ill. 460.

Where a count of wilful negligence is not established by the evidence it would seem desirable, as a practical proposition, that the record should so indicate, so that this question would be res adjudicata. This would avoid a possible second adjudication of this question in the event that the judgment debtor were imprisoned.

It is said by defendant that the court erroneously submitted the special interrogatory to the jury without its having been first submitted to counsel for defendant, citing chapter 110, paragraph 79, Illinois Statutes (Cahill), relating to special interrogatories, reading “which questions of fact shall be submitted by the party requesting the same to the adverse party, before the commencement of the argument to the jury.” It was held that this statute is mandatory and failure to observe it requires a reversal. Pittsburg, C., C. & St. L. R. Co. v. Smith, 207 Ill. 486.; Chicago City Ry. Co. v. Jordan, 215 Ill. 390.

We notice that the bill of exceptions does not indicate which of the instructions, given or refused, were requested by plaintiff or defendant, but reads that the instructions were, given “at the request of the plaintiff and defendant.” Upon such a record we do not consider errors relating to the instructions.

For the reasons above stated the judgment is reversed and the cause is remanded.

Reversed and remanded.

0 ’Connor, P. J., and Matchett, J., specially concur.

Mr. Presiding Justice O’Connor specially

concurring: I agree that the judgment should be reversed and the cause remanded for the reasons stated in the opinion. I do not agree with the cases of Grinestaff v. New York Cent. R., 253 Ill. App. 589; O’Neall v. Blair, 261 Ill. App. 470, and Streeter v. Humrichouse, 261 Ill. App. 556, which hold that a general verdict in a personal injury case should be set aside where some counts of the declaration charge the defendant with negligence and other counts charge him with wilful and wanton conduct, there being no evidence to sustain the wilful and wanton counts.

In the Grinestaff case, the court said, p. 596: 1 ‘ The cause went to the jury on all the counts in the declaration and there was a general verdict. If appellee, therefore, has not established the fifth count and made out a case of wilful or wanton injury, the verdict cannot stand. The injury could not have been caused wilfully or wantonly and negligently at the same time.” The court there cites a number of cases in support of its position as stated in the quotation just made, hut I think none of the cases cited goes so far. The O’Neall and the Streeter cases, supra, announce the same rule, referring to the Grinestaff case.

In the case of Guianios v. DeCamp Coal Min. Co., 242 Ill. 278, it was held that in an action for damages for negligently causing the death of a person, if the evidence shows that the defendant was guilty' of negligence, recovery might be had under a count charging wilfulness. In that case the court said (p. 281): “The declaration charged that the appellant ‘negligently, carelessly and wilfully’ did the things complained of, causing the death of Antonopoulos. The proof does not tend to show that the act was wilfully done, and counsel for appellant argues that there was a variance between the proof and the declaration, and that therefore the motion made at the close of plaintiff’s evidence for an instruction to find appellant not guilty should have been granted. In tort the plaintiff may prove a part of his charge if the averment is divisible, and proof of a part of the allegations, if sufficient to sustain a case, will sustain a judgment.” (Citing authorities.) “In this case, if the proof showed that the act was caused by the negligence of appellant, recovery could be had even though the negligence was not wanton or wilful.”

In Levy v. Schikowski, 239 Ill. App. 447, which was a proceeding under the Insolvent Debtors’ Act, Cahill’s St. ch. 72, 4 et seq., it appeared that the judgment under which the defendant was arrested on a capias, was rendered in a suit for damages for personal injuries. In that case the declaration was in two counts, in each of which it was held that they charged “the defendant with wilfully and negligently driving the automobile.” We there said (p. 451): “The declaration, verdict and judgment do not necessarily show that the defendant in the tort case was guilty of wilful negligence, as they, in fact, may have involved only the finding that the defendant was guilty of ordinary negligence. (Guianios v. DeCamp Coal Min. Co., 242 Ill. 279.)”

In Van Meter v. Gurney, 240 Ill. App. 165, it was said (p. 186): “The rule is that where the declaration charges both wilful and ordinary negligence, even though the proof shows ordinary negligence and not wilful negligence, a recovery may be had on ordinary negligence. Guianios v. DeCamp Coal Min. Co., 242 Ill. 278, 281.” In Abbrassart v. Bouchard, 241 Ill. App. 484, the court quoted with approval from the Levy case, supra (239 Ill. App. 447.) In the Grinestaff case the basis of the decision seems to be that there is a radical distinction between a count charging one with negligence and another count charging wilful and wanton conduct. But in Walldren Express & Van Co. v. Krug, 291 Ill. 472, it is.held that there is not such a marked distinction between the two. In that case there were counts charging the defendant with negligence and a count charging that the defendant recklessly and wantonly operated a certain truck. The court said (p. 476): “One count of the declaration charged that the defendant failed to stop its automobile when danger was imminent and carelessly, recklessly and wantonly ran it upon and against the plaintiff. If the facts shown by the evidence-established the truth of this averment, the contributory negligence of the plaintiff would not relieve the defendant from liability for its wanton negligence.” (Citing authorities.) “Whether the negligent conduct of a defendant which has resulted in injury to another amounted to wantonness is a question of fact to be determined by the jury, if there is any evidence in the record fairly tending to show such a gross want of care as indicates a wilful disregard of consequences or a willingness to inflict injury.” And continuing, the court discussed the meaning of the words “wantonness,” “wilfully” and “wilfulness,” and held that they have been used to express the same thing, and continuing said (p. 478): “Thus, in Lake Shore and Michigan Southern Ry. Co. v. Bodemer, supra (139 Ill. 596), ‘What is meant by “such gross negligence as evidences wilfulness?” It is “such a gross want of care and regard for the rights of others as to justify the presumption of wilfulness or wantonness.”- — 2 Thompson on Negligence, 1264, sec. 52.’ Again, in the same case: ‘WThat degree of negligence the law considers equivalent to a wilful or wanton act is as hard to define as negligence itself. ’ In Chicago City Ry. Co. v. Jordan, 215 Ill. 390, we said: ‘Where there is ... a degree of wilful or wanton recklessness which authorizes a presumption of an intention to injure generally, the act ceases to be merely negligent and becomes wilful or wanton. In such a case there may be an actual intent to injure or such a conscious or intentional disregard of the rights of others as to warrant a conclusion that an injury was intended.’ . . . There was no error, therefore, in the refusal to instruct the jury that there could be no recovery on the ground of wilful or wanton negligence. ’ ’ In that case it will be noted that there may be such a degree of negligence which the law would consider equivalent to a wilful and wanton act. So that the evidence may show in a given case that the defendant was guilty of negligence while the evidence might again show if the conduct of the defendant was more reckless that the degree of negligence would be equivalent to a wilful or wanton act.

In my opinion, the judgment rendered in a personal injury case, where there are counts charging the defendant with what might be termed ordinary negligence, and a count or counts charging the defendant with such negligence as the law would hold to be equivalent to wilful and wanton conduct, a general verdict and judgment on the verdict in favor of plaintiff, might be sustained although the evidence was insufficient to sustain the wanton charge. One good count with supporting evidence is sufficient. Scott v. Parlin & Orendorff Co., 245 Ill. 460.

Mr. Justice Matchett: I agree with the opinion of Mr. Presiding Justice O’Connor.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    The People of the State of Illinois ex rel. Walter A. Olsen and Fred B. Houghton, Administrators De Bonis Non with the Will Annexed of the Estate of George Glauner, Deceased, Defendants in Error, v. James D. Templeman, Plaintiff in Error.
    Gen. No. 35,295.

      Heard in the first division of this court for the first district at the October.term, 1931.
    Opinion filed February 29, 1932.
    Alexander W. Jamieson, for plaintiff in error.
    Walter A. Olsen and Fred B. Houghton, pro se, for defendants in error.
   Mr. Justice Matchett

' delivered the opinion of the court.

This writ of error was sued out by Templeman, the respondent, to secure the reversal of an. order of the probate court of Cook county entered March 30, 1931, in certain proceedings brought under sections 81 and 82 of the Administration. Act, Cahill’s St. ch. 3, fifí 82, 83 (Smith-Hurd’s Ill. Bev. Stats. 1931, p. 95) and in the estate of George Glauner. The record before us discloses that on September 24, 1928, Phillip E. Miller, as executor of said estate, filed his inventory therein, which was on that date approved by the probate court. As a result of certain proceedings thereafter brought Miller resigned, his resignation was accepted, and May 2, 1930, letters of administration de bonis non were issued to Fred B. Houghton and Walter A. Olsen. The letters recited the death of Glauner on August 28, 1928, testate, the appointment of Miller as executor, his resignation, leaving the estate not fully administered, and the appointment of his successors. On the same day an affidavit was filed by the administrators de bonis non representing that one “James D. Temple-man, who was the attorney for Phillip E. Miller, former Executor of this said Estate, received from said Phillip E. Miller certain large sums of money, to-wit, more than Three Thousand Dollars ($3,000) of the assets of said Estate, and that the said James D. Templeman has converted the same to his own use and refuses to account for the same.” The administrators prayed for an order citing Templeman to appear and to submit himself and his books, papers and records to an examination for the purpose of discovering assets belonging to the estate. The affidavit is verified .by Walter A. Olsen and Fred B. Houghton, who say that they have subscribed to the petition and know the contents thereof, “and that the same is true in substance and in fact, except as to those matters stated to be on information and belief, and as to those matters they believe the same to be true.”

May 5, 1930, "a citation issued to the sheriff which recited the filing of the petition and the averment that Templeman had in his possession or under his control goods, chattels, etc., belonging to the estate which he refused to give to the administrators, due demand having been made therefor, and Templeman was therein notified to appear before the probate court of Cook county on May 16,1930, “then and there to show cause, if any he has or can show why he does not turn over the goods, chattels, effects, books of accounts,” etc.

The citation was returned as having been personally served on May 7, 1930. The hearing was postponed from time to time and on July 11, 1930, an order was entered reciting that the cause coming on to be heard on citation to reach assets against Templeman, the citation being regularly called for hearing and Templeman failing to appear and respond, “it is hereby ordered that an attachment issue instanter against said James D. Templeman for failure to obey the order of the Court.” The attachment accordingly issued, and the sheriff returned it executed by bringing Templeman into court on July 22, 1930. The cause was continued from time to time until the February term, 1931. On February 16, 1931, the following order was entered: “The said James D. Templeman having appeared in person before this court and having rendered an account of assets of said Estate' received by him and payments made by him to the executor of said Estate, and for the use of said Estate, which account in words and figures is as follows: . . . and the said account having been contested, and the Court having heard and considered all the evidence, oral and documentary, and arguments, submitted upon the hearing thereof, doth find: That said account is correct as to the matters therein contained except as to the following items:.

Fee allowed (10/5/28) $100.00

Settlement of all matters allowed on fee 300.00

Add to attorney’s fees 300.00

“The Court further finds that said James D. Templeman has received moneys of the Estate of Gfeorge Gflauner, deceased, in addition to the amounts set forth in the above account in the sum of Twenty-three Hundred Forty ($2,340) Dollars, and for which he has not accounted to said estate, which amounts and dates thereof are as follows, to-wit: . . . It is further ordered that said James D. Templeman pay over to the administrators de bonis non with the will annexed to the Estate of George Glauner, deceased, the sum of Three Thousand Forty ($3,040) Dollars, within ten (10) days.”

The record shows the entry of a further order on March 30,1931, which recites that the cause came on to be heard on the return of the writ of attachment issued on July 11, 1930, to answer a charge of contempt of this court, “pursuant to a citation issued out of and under the seal of this Court on May 5th, 1930, requiring the said James D. Templeman to show cause if any he has or can show why he does not turn over the goods, chattels, effects,” etc.; that thereafter on July 11, 1930, a.writ of attachment issued out of and under the seal of this court against Templeman for his failure to appear in the probate court at a continued hearing of the citation to discover assets of the Estate of George Glauner, deceased, and that on July 22, 1930, Templeman was brought before the court in the custody of, the sheriff of Cook county and a preliminary hearing had on the attachment, and Templeman having entered into a recognizance in open court for his appearance, and it

“Further appearing and the Court so finds that said James D. Templeman appeared in person before this Court, on, to-wit: September 24, 1930, and subsequent continued hearings had herein, and rendered to the Court an account of assets of said Estate of George Glauner, deceased, received by him, and of payments made by him to the Executor of said Estate for the use of said Estate, and the said account was contested and the Court heard and considered all the evidence, oral and documentary, and arguments, submitted upon the hearing thereof, and it

“Further appearing and the Court so finds that said hearing on said Attachment was continued from time to time from July 22,1930, to February 16,1931, and it

“Further appearing and the Court so finds that an order was entered by this Court on February 16, 1931, after proofs taken in open Court as aforesaid, that the said James D. Templeman pay over to the Administrators de bonis non with the Will annexed of said Estate of George Glauner, deceased, the sum of Three Thousand Forty ($3,040) Dollars, within ten (10) days, and it

“Further appearing and the Court so finds that the said James D. Templeman has not paid and still refuses to pay over to the Administrators de bonis non with the will annexed of the Estate of George Glauner, deceased, the said sum of Three Thousand Forty ($3,040) Dollars, and the Court having fully considered the same, and being fully advised in the premises, doth find that the said James D. Templeman is guilty of contempt of this Court, in this, that he has wilfully refused and failed to pay over to said Administrators de bonis non with the will annexed of said Estate the said sum of Three Thousand Forty ($3,040) Dollars as required by the aforesaid order of this Court entered February 16, 1931.

“It Is Therefore Ordered and. Adjudged by the Court that the said James D. Templeman is guilty of contempt of this Court, in this, that he has wilfully refused and failed to pay over to the said Administrators de bonis non with the will annexed of the Estate of George Glauner, deceased, the sum of Three Thousand Forty ($3,040) Dollars as required by thé aforesaid order of this Court entered February 16,1931, and it is ordered and adjudged that he be committed to the County Jail of Cook county, Illinois, there to remain charged with said contempt of this Court until he shall pay over the said sum of Three Thousand Forty ($3,040) Dollars to the Administrators de bonis non with the will annexed of said estate, as required of him by said order of this Court entered February 16, 1931, but not for a period of longer than six months from the first day of his incarceration under this Order, or until he be released by due process of law; and that he pay the costs of this proceeding.”

The respondent contends in the first place that the order of commitment is erroneous, for the reason, as he says, that the alleged contempt was committed out of the view and hearing of the court, and the order entered without notice, rule to show cause, or appearance in person or by counsel, answer or hearing. To this point respondent has cited a number of cases, such as Smith v. Tenney, 62 Ill. App. 571; People v. Berrell, 216 Ill. App. 341; People v. Fort Dearborn Trust & Savings Bank, 232 Ill. App. 109; Dinsmoor v. Bressler, 164 Ill. 211; Hohenadel v. Steele, 237 Ill. 229; all of which state the elementary rule that a party should not be condemned without an opportunity to be heard on a charge of contempt not committed in the presence of the court. The record, in our opinion, does not disclose any such arbitrary action as respondent describes. On the contrary, the record shows that the citation issued in due form and was personally served upon defendant; that he appeared without objection and that as he failed to appear for a further hearing an attachment was issued which brought him personally into the presence of the court, where he gave bond for his future appearance. The record also discloses that he filed a written document in the form of an account showing his dealings with this estate; that the account was contested and that the court specifically found that he had failed to account for the sum of $3,040 which had come into his hands and which belonged to the estate. He made no objection to the order or to the finding. He prayed no appeal therefrom, nor in any manner, so far as the record discloses, did he except thereto. He was not condemned without a hearing or without due process of law, but on the contrary he was served with notice, appeared upon the hearing and failing to appear upon a continuance of the matter was actually brought into court in the custody of a sheriff. It is difficult to understand how respondent could have had fuller notice or a more complete hearing than that which was provided for in the proceedings preliminary to the entry of the order of February 16, 1931. He was present; he was heard; he submitted an accounting. The opportunity to present evidence was provided. The record fails to disclose any objection on his part or request by him for a fuller or better hearing. The order and judgment was final in its nature and settled the rights of the parties to the proceeding, but respondent did not object thereto or pray an appeal therefrom. Upon the entry of the order of February 16, a further hearing of the cause was continued until March 2,1931, then to March 16, 1931, and again to March 30, 1931. The respondent was before the court on February 16, 1931, and was therefore charged with notice of the continuances by which the cause was postponed to March 30, 1931. He is presumed to know that the matter might be continued from day to day. He knew of the expiration of the period during which payment was to be made by him, and had knowledge, presumably,, that the court would take action upon the matter on March 30. The proceeding in which he was respondent was neither an action at law nor one in equity, but was a special proceeding whereby the court is authorized to use summary methods of compelling compliance with its orders and decrees in matters of this kind and nature. The proceeding itself is somewhat in the nature of an inquisition and the citation directed that the respondent should show cause. He was not without knowledge of the nature of the proceeding but was definitely informed of it by the language of the citation itself, and if he had entertained any doubt in the matter the order for attachment which issued to the sheriff should have removed that doubt. The reason for requiring notice and a rule to show cause in actions for contempt is to give the defendant an opportunity to show, if he can, compliance with the order. Here, the respondent had full information. He personally knew of the entry of the order and presumptively had knowledge of the time within which the sum named therein should be paid, and he knew that under the law the nature of the proceeding which he was called upon to answer was such that if he failed to comply, the sentence for contempt might follow upon the day to which the hearing was adjourned. The law did not require repeated citations or repeated notices which would inform this respondent of the nature of the charge he was called upon to meet. We conclude that the order of March 30 is not void, as respondent contends.

It is further urged that the order of February 16 is void and a nullity, and that respondent might acquit himself of the charge of contempt for a violation of it by showing such nullity. Armour Grain Co. v. Pittsburgh, C., C. & St. L. R. Co., 320 Ill. 156, is cited. We do not question the law, but, as already stated, the order of February 16 was not objected to, was entered after full notice and a hearing in a matter of which the court had jurisdiction, and it is therefore not a nullity and the rule invoked is not applicable.

It is contended in the third place that in proceedings under sections 81 and 82 of the Administration Act, Cahill’s St. ch. 3, H 82, 83, it is necessary that there should be either a certificate of evidence or findings of fact in order that the court might determine upon what the order of February 16 was based. It is contended that in this respect proceedings under sections 81 and 82 are similar to proceedings in chancery, and that it is necessary that a party in whose favor a judgment or decree is entered should preserve the evidence either by a certificate or by findings of fact as is necessary in chancery cases. Hicks v. Monahan, 209 Ill. App. 516, and Berg v. Berg, 223 Ill. 209, are cited and relied on, and it must be conceded that Ricks v. Monahan makes this contention plausible. That case was, however, decided under the former statute and before the amendments enlarging the jurisdiction of the probate court, giving it the right, where questions of title and rights of property are involved, to grant a jury trial upon the demand of either party. This court has held that even in chancery cases where the parties are entitled to a trial by jury, the party seeking to have a judgment or decree reversed must present the evidence to the reviewing court. In re Estate of Bennett, 248 Ill. App. 174, and cases there cited. It would therefore appear that this rule of chancery practice is no longer applicable, and if the respondent desired to attack the order of February 16, 1931, on that ground, it devolved upon him rather than upon the administrators to preserve the evidence.

The respondent further contends that the Administration Act does not permit administrators de bonis non to proceed by citation and attachment to collect assets already administered upon by a resigning executor and that assets squandered' or misapplied by the resigning executor are under the law assets administered. His contention seems to be that sections 37 to 40 of the Administration Act, Cahill’s St. ch. 3, fifí 38-41, provide the manner in which administrators de bonis non are empowered to proceed in such cases and that they may not proceed otherwise. Respondent says that according to the rules of the common law, assets squandered or misapplied by an executor are administered, and that the remedy of the administrator de bonis non in such case is by, suit on the bond of the administrator whom he succeeds. Respondent cites In re Assignment of Richart & Campbell, 58 Ill. App. 91, and Hanifan v. Needles, 108 Ill. 403. It would not be difficult to distinguish either one of those cases from this one. The finding here is not that the property was converted by the former executor, Miller, but that the respondent, Templeman, who acted as attorney for Miller, is guilty of such conversion. In In re Assignment of Richart & Campbell, the executor had collected money due to the estate and put it into a firm of which he was a member. The other members of the firm had no knowledge of the fact that the money was the property of the estate. The firm became bankrupt, and the administrator de bonis non filed a claim against the trustee of the bankrupt estate. . The court held against the right of the claimant to recover, stating in substance that the money had ceased to be a trust fund; that the title was in Campbell, the former administrator, who had converted the assets, and that the remedy was on his bond, citing among other cases Hanifan v. Needles, 108 Ill. 403. The opinion pointed out that there was no privity of contract between the firm and the estate whereby a debt might have been created and that the money had lost its identity as a trust fund. If the party who received the money had known at the time he received it that it was a trust fund, a different question would have been presented and one more nearly like that which we consider here.

Hanifan v. Needles, supra, is a case where a county court without a writ, process, or citation relating thereto removed the executor, and the • administrator de bonis non (the removed executor having died) filed a claim against the estate of his predecessor to recover proceeds of property belonging to the estate for which the deceased executor had never accounted, as it was alleged. The court said in substance that it was a well recognized rule of common law that the powers and duties of an administrator de bonis non were limited to the administration of such effects which had not been administered by its predecessor; that consequently such administrator had no right or authority to call on the predecessor, or his legal representatives in case of his decease, to account to him for the proceeds of such estate, or for its mismanagement, or for any breach of duty respecting it, and that in such case the preceding executor or his legal representatives were liable directly to the heirs, devisees, next of kin and creditors, as their interest might appear. The opinion cited Rowan v. Kirkpatrick, 14 Ill. 1, 8, and Newhall v. Turney, 14 Ill. 338, and declared that such was the settled law “in the absence of any statutory provisions on the subject,” and that the sale and conversion of-the testatrix’s property into money by the former executor, amounted to an administration of such property within the meaning of the rule. Marsh v. People, 15 Ill. 284, and Beall v. New Mexico, 16 Wall. (U. S.) 535, 541, were cited.

The answer to this contention of respondent is obvious. He is not the former executor. He is the attorney of the former executor, who, as the order finds, knew that the property he received and converted to his own use belonged to the estate. The assets are so described by him in the account which he submitted in response to the citation. Sections 81 and 82 of the Administration Act, as amended, give authority to any “persons interested in the estate” to bring the proceedings provided for, and administrators de bonis non are, we think, such persons. The finding is that respondent converted the property of this estate to his own use. The proceeding was therefore not one merely for the collection of a debt, which would violate the rule announced in Johnson v. Nelson, 341 Ill. 119, and while it must be conceded that prior to the amendment of these sections the proceeding could not have been maintained under the rule laid down in Moore v. Brandenburg, 248 Ill. 232, and other cases cited, the amendment to these sections extending the jurisdiction of the probate court to cases of this kind and granting the right of trial by jury, has removed that objection.

The respondent also contends that the court was without jurisdiction by reason of defects in the affidavit and because it was not shown in what way the administrators were interested in the estate. We think the contention is without merit, but if there was any merit in the contention the respondent waived it by submitting his account and contesting the matter.

The respondent further contends that the affidavit was insufficient to give jurisdiction because it was made upon information and belief, but these sections of the statute expressly provide that such an affidavit is sufficient. If the respondent wishes to be relieved from the burden placed upon him by the order, a speedy and efficient method is available, viz., that he turn over to this estate the money which he has so long wrongfully kept from it.

There is no reversible error in the record, and the orders complained of are affirmed.

Affirmed.

O’Cohhor, P. J., and McSurely, J., concur.


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    Russell Firebaugh, Trustee, Defendant in Error, v. Ellen Seegren et al., Plaintiffs in Error.
    Gen. No. 35,419.

      Heard in the first division of this court for the first district at the October term, 1931.
    Opinion filed February 29, 1932.
    Rehearing denied March 14, 1932.
    Ernest A. Eklund and Frederick J. Bertram, for plaintiffs in error.
    Morton S. Cressy, for defendant in error; Preston Clark, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

By this writ of error defendants, in a proceeding brought by the trustee to foreclose a trust deed, seek to reverse a decree in favor of complainant entered on July 18, 1931. The cause was heard by the chancellor upon exceptions to the report of the master. The report recommended a decree of foreclosure as prayed in the bill and the findings of the master were confirmed by the chancellor. The decree found the total unpaid indebtedness secured by the trust deed to be $71,522.37 and directed the sale of the premises in case of a further default in payment.

The original indebtedness was $67,500 represented by 115 bonds, all of which were dated March 1, 1929, and drew interest at the rate of 6% per cent per annum, payable semiannually until maturity, and 7 per cent after maturity, the interest which should become due thereon being evidenced by coupons attached to the respective bonds. The bonds by their terms matured on different dates from September 1, 1929, up to March 1, 1936, when the entire issue would become due and payable. All of these bonds were secured by a trust deed given to complainant, said trustee being the president of the Bond and Mortgage Co. which undertook according to the terms of a contract of the same date to underwrite and dispose of the bonds.

The principal defense interposed by the answer of defendants is that the contract for the sale of these bonds to the Bond and Mortgage Co. was usurious in its nature and a violation of sections 5 and 6 of chapter 74 of the Illinois Revised Statutes, Cahill’s St. ch. 74, H1T 5, 6. (See Smith-Hurd’s Ill. Rev. Stats. 1931, secs. 5 and 6, chap. 74, p. 1755.) It is insisted by defendants and not denied by complainant that if the original contract was usurious, then the defense may be interposed effectually in a proceeding to foreclose a mortgage, even as against an innocent purchaser and before maturity. Olds v. Cummings, 31 Ill. 188; Schultz v. Sroelowitz, 191 Ill. 249; Pittsburgh Plate Glass Co. v. Kransz, 291 Ill. 84; Hirsh v. Arnold, 318 Ill. 28.

The facts upon which the defense of usury is urged seem to be that the defendant mortgagors made an application to the Bond and Mortgage Co. for a loan of $61,630.28, which was the amount needed by them to take up and pay a first mortgage bond issue against their real estate which would mature March 7, 1929. Pursuant to negotiations between the parties a written agreement was made between defendant owners and the Bond and Mortgage Company on March 1, 1929. In this agreement the owners are referred to as the seller and the Bond and Mortgage Co. as the purchaser. The agreement provides:

“The Purchaser has agreed to purchase and the Seller has agreed to sell an issue of coupon bonds, provided the various assertions of the maker hereinafter contained are found to be correct, upon the following mutual terms and conditions:” The agreement then provides that the amount of the bonds should be $67,500; that they should be issued by the seller and sold and delivered to the purchaser and should be secured by a deed of trust; that pending the preparation of definite bonds, a temporary bond for the amount of the issue should be delivered by the seller to the purchaser.

Article 10 of the agreement provides:

“The Purchaser agrees to purchase and the Seller agrees to sell and deliver to the Purchaser said bond issue for a sum equal to ninety-three per cent (93%) of the par value thereof, no accrued interest to be paid, and the proceeds of said sale (towit: ninety-three per cent (93%) of the par value thereof) to be held, applied and disposed of in the manner and under the conditions provided for in Article XII hereinafter set forth. This agreement for the purchase and sale of said bonds is entered into with a view to the marketing of said bonds of the Seller to the investment public, and as consideration for the amount of discount at which said bonds are purchased as aforesaid, the Purchaser agrees to defray all the expenses of marketing said bonds, including advertising and all other sales expense including planning of sales and hiring of salesmen, whether with respect to this specific issue of bonds or the securities generally marketed by the Purchaser or companies affiliated with the Purchaser (other than expenses elsewhere herein specifically provided to be borne by the Seller), and to furnish the services of the named trustee and named successors in trust under said trust deed. ’ ’

The eleventh provision of the agreement provides that the seller shall pay reasonable attorneys’ fees incurred and all legitimate or proper expenses connected with the making of the bond issue. The agreement states that the seller authorizes the purchaser to represent the seller and subscribe and execute on behalf of the seller any and all requisite applications and other instruments in connection with procuring authority for the issuance and sale of the bonds in any state or jurisdiction. Such expenses actually amounted to the sum of $585.30. The seven per cent discount or commission amounted to $4,725, and these deductions left from the loan of $67,500 a credit of $62,189.70, available for use in retiring the old first mortgage bond issue. The total amount due upon this issue was $61,630.28, leaving a balance in the fund of $559.42 to the credit of the mortgagors. If the discount of $4,725 may be considered as a profit which accrued to the Bond and Mortgage Co. for the loan and forbearance of money, then the amount of such charge would exceed the sum of seven per cent per annum and would constitute usury under the statute; and the controlling question in the case therefore is whether this agreement was a contrivance for the purpose of evading the statute and securing an illegal charge for' use of money loaned or whether the charge was a proper one for services rendered by the Bond and Mortgage Co. in that connection.

A leading case in Illinois upon the construction of the usury statute is Clemens v. Crane, 234 Ill. 215. It is there said:

“To constitute usury, in contemplation of law, the following essential elements must be present: (1) There must be a loan or forbearance; (2) the loan must be of money or something circulating as money; (3) it must be re-payable absolutely and at all events; (4) something must be exacted for the use of the money in excess of and in addition to the interest. allowed by law.” The opinion of the court adds that some decisions imply that a fifth element should be added, consisting of the intent of the parties or at least of the lender, but the opinion states: “It seems to us' quite as accurate to say that the intention of the parties as the same appears from the facts and circumstances of the case may be considered, in connection with the other evidence, in determining whether the essential elements of usury are present in the particular case under investigation. The form of the contract is' not conclusive of the question.”

The mere verbal raiment in which an agreement is clothed will not be permitted to hide the real character of the transaction, and no device will be allowed to cover up its real character. Therefore, the courts hear extrinsic evidence and resort to parol evidence for the purpose of determining the actual fact as to whether there has been an intentional violation of the statute, the purpose of which is to prevent extortion, wrong and oppression." The defense, however, is an affirmative one, and the defense must be established by clear and convincing evidence.

Was this contract between these parties for the issuance of these bonds usurious in its nature? The fact that the borrower is therein described as the seller and the lender as the purchaser is not conclusive upon that issue, if it appears from all the evidence that the effect of the transaction was to enable the Bond and Mortgage Co. to loan its money at a usurious rate. We are not able to find such intention of the parties in this transaction. The contract seems to be one which has become well known in the financial and business world as an underwriting contract. That is defined by one author: “An agreement by the subscribers, based on a consideration, to insure the sale of the bonds subscribed at a stipulated price” (1 Fletcher, Cyc. Corp., sec. 442), or, as another author states, “Underwriting means an agreement made before the shares are brought before the public, that, in the event of the public not taking all the shares or the number mentioned in the agreement, the underwriter will take the shares which the public do not take.” (1 Cook, Corp. 7th ed., 74, sec. 14; 3 Bouvier’s Law Diet.; Rawle’s ed. 3352; Machen’s Corp., sec. 419.) That the purpose of this agreement was to secure the sale of defendants’ bonds to the public and that the discount allowed upon the purchase price of the bonds was compensation for the services to be rendered in that respect, seem to be borne out by all the facts and circumstances which appear in the case; namely, that the bonds were so disposed of through the efforts and the services of the Bond and Mortgage Co., and that under the terms of this contract the Bond and Mortgage Co. was absolutely held to a purchase of the same at this price, which would guarantee to defendants the sale of these bonds and the receipt by them of the money needed in order to pay off the old loan. There is no evidence tending to show that there was anything unusual or oppressive about the agreement; that the services were not performed nor of the value represented by the discount allowed. The courts of Georgia were called upon to construe a quite similar contract in the case of Stewart v. Miller & Co., reported in 161 Ga. 919, 132 S. E. 535; annotated in 45 A. L. E. p. 570. The amount of the bonds issued in that case was $112,000 and the amount of the discount was $6,250. The Supreme Court there said that in view of the services performed by the bond company it could not say that the agreement was a device or subterfuge for charging more interest than allowed by law or that the amount was an unreasonable consideration for the services which were performed. Two of the justices dissented upon the ground that the transaction in question was in the nature of a loan rather than a contract for services.

Here, the transaction was in the form of a contract for purchase with an agreement to perform services. In effect, the Bond and Mortgage Co. guaranteed the sale of defendants’ bonds to the public and agreed to perform the services necessary to sell the same for a commission of seven per cent, which there is no evidence to indicate is unreasonable. We therefore hold that there was no usury in this transaction.

The foregoing practically also disposes of the second ground on which we are asked to reverse the decree, namely, that the proofs fail to establish any default upon which complainant would be entitled to a decree of foreclosure. That would be true, if the defense of usury were established, but otherwise the contention is without merit.

The decree finds (and the proof tends to show) that on September 1,1930, bonds numbered 7 to 9, inclusive, in the sum of $500 each, became due and payable; that interest coupon notes numbered 3 on the balance of the indebtedness remaining unpaid, amounting to $2,096.25, became due on the same date, and that after crediting defendants with monthly deposits theretofore made in accordance with the trust deed, amounting to $862.19 on account of principal and $1,397.49 on account of interest coupons numbered 3, there still remained due on September 1, 1930, on principal and interest, the sum of $1,336.57, and that no payment on account thereof had been made. The decree further finds default by defendants in failing to comply with section 1, article 2, of the trust deed, by which they agreed to pay on or before the first day of each month beginning with April, 1929, and ending with March, 1936, an amount equivalent to one-sixth of the next maturing interest payments upon all bonds then outstanding and to pay on or before the first day of each month beginning with April, 1929, and ending with September, 1935, an amount equivalent to one-sixth of the principal of the instalment of bonds then next maturing, and that defendants defaulted in making such payments which became due on September 1, 1930. It further finds (as the evidence tends to show) that defendants had failed and neglected to pay the taxes on the premises for the years 1928 and 1929, or to make the deposit therefor required by section 1 of art. 2 of the trust deed. The trust deed provides that for any or either of these defaults the trustee might elect to declare the whole principal due and payable, which he did on September 3, 1930.

Defendants contend in the third place that the court erred in decreeing a foreclosure, since only three of the entire issue of bonds were produced at the hearing, and it is earnestly contended that complainant was not entitled to a complete foreclosure for all outstanding bonds without producing the same. Defendants even suggest that.neither the fact of the existence of the bonds nor of the delivery of them were proved upon the hearing, nor was there an authentication of the same as required by the trust deed. These facts, however, were proved by the testimony of the trustee as is disclosed by an examination of the record. In support of their contention that it was necessary to produce and prove up the individual bonds which the trustee sought to foreclose, defendants say that it has uniformly been held to be the law of this State that such production and proof are necessary and they cite in support of this contention a number of cases, such as Dowden v. Wilson, 71 Ill. 485, and Martin v. Frank, 259 Ill. App. 417. That such has been and is the general rule may be conceded, but in view of the nature of this proceeding and of the provisions of the trust deed, we think the present case falls within an exception to that rulé. Section 1 of article 9 of the trust deed provides:

“In any case in which, under the provision of any article herenabove, the Trustee has the right to declare the principal of all or any part of the bonds hereby secured and outstanding to be due and payable immediately the Trustee may, without any action on the part of any bondholder, and without declaring said bonds due, and upon the written request of the holders of not less than one-fourth in amount of said bonds then outstanding, shall institute such suit in equity or at law, in any court of competent jurisdiction, to enforce and protect any of his rights or the rights of the bondholders hereunder, as he may deem proper, and especially may institute proceedings to foreclose this Indenture in any manner provided by law and to obtain a sale of the said estate and premises under order of court.” As we construe this section of the trust agreement, it confers upon the trustee power to foreclose without regard to his possession of any bonds and without regard to any request from any bondholder. In case of default on his part to take action, the holders of one-fourth of the amount of the bonds may then compel him to institute such suit. The duties conferred upon a trustee to whom is given such power by the trust agreement is of an active nature and differs very much from the case where he is simply the passive holder of a legal title. The distinction has been pointed out by our Supreme Court in well considered cases, one of which is Chicago & G. W. R. Land Co. v. Peck, 112 Ill. 408, where the court, speaking through Justice Sheldon, after stating the general rule that all persons interested in the subject matter of a suit in equity, including cestuis que trust, are to be made parties, says: “(quoting from Van Vechten v. Terry, 2 Johns. Ch. 197) ‘This is one of those cases in which the general rule cannot and need not be enforced, for the trustees sufficiently represent all the interests concerned; they were selected by the association for that purpose, and we need not look beyond them. ’ And see Shaw et al. v. N. C. R. Co. et al., 5 Gray. 162; Story’s Eq. Pl, secs. 142, 216, 217. We regard the present as a clear case within the exception to the general rule of equity pleading, that all persons interested in the subject matter of the suit must be made parties to the bill.” To the same effect is Farmers’ Loan & Trust Co. v. Lake Street Elevated R. R. Co., 173 Ill. 439, where Mr. Justice Magruder, after stating the general rule, said that there were two well established exceptions to it, the first being where absent parties were properly represented as in the case of a trustee for bondholders, and, second, where the beneficiaries were so numerous that the délay and expense of bringing them in would become oppressive and burdensome. In the quite recent case of American Trust & Safe Deposit Co. v. 180 E. Delaware Bldg. Corp., 262 Ill. App. 67, the Second Division of this court had occasion to consider the precise question as to whether under the provisions of a trust deed quite similar to this one, it was necessary to make any of the bondholders parties complainant or defendant to the bill. The court, after considering the cases, said:
“No bondholder had an absolute right of intervention, especially in the absence of any allegations of fraud, misfeasance or bad faith on the part of the trustee. (Chicago & G. W. R. Land Co. v. Peck, 112 Ill. 408, 435-6; St. Louis & Peoria R. Co. v. Kerr, 153 Ill. 182, 196; Farmers’ Loan & Trust Co. v. Lake Street Elevated R. Co., 173 Ill. 439, 459-60; Guaranty Trust Co. v. Chicago, M. & St. P. Ry. Co., 15 Fed. [2d] 434, 440; Bowling Green Trust Co. v. Virginia Passenger & Power Co., 132 Fed. 921, 926.) ”

The Encyclopaedia of Pleading & Practice, vol. 9, p. 400, states that the- rule which required the production of the note or bond or satisfactory explanation of its absence is not applicable in the foreclosure of a mortgage where the debt evidenced by the note or bond sufficiently appears from the terms of the mortgage alone, and that it need not be produced until rendition of the decree, citing as authority Northern Trust Co. v. Columbia Straw-Paper Co., 75 Fed. 936, where the opinion states:

“Under the contract, these trustees are empowered, as it seems to me, to carry on this foreclosure proceeding and have a decree of foreclosure, without the bonds being produced in the first instance. Toler v. East Tennessee, etc., R. Co., 67 Fed. 169, appears to be in point and to indicate the correct practice.” The rule is applicable to this record.

The law, we think, must be regarded as established ■contrary to the contention of defendants by these well considered cases. Of course, as pointed out by the Second Division of this court, the rule would not be applied in case of fraud, misfeasance, collusion or bad faith on the part of the trustee.

The other contentions of the defendants are that the allegations of the bill are not sufficient to support the decree and that the proofs are also insufficient. We have examined the contentions and find them to be without merit.

The further contention is made that the allowance of $3,500 as solicitor’s fees was unreasonable and that the decree should be reversed for that reason. In this matter complainant offered proof tending to show that the fee was usual, just and reasonable for the services performed, and there was no evidence by defendants to the contrary, nor does the fee seem to this court to be unreasonable.

Moreover, the whole record indicates somewhat a determination on the part of defendants to compel the solicitor to earn at least the amount allowed.

For the reasons indicated the decree is affirmed.

Affirmed.

0 ’Connor, P. J., and McSurely, J., concur.


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    Samuel I. Brown, Plaintiff in Error, v. Fire Insurance Company of Chicago, Defendant in Error.
    Gen. No. 35,458.

      Heard in the first division of this court for the first district at the October term, 1931.
    Opinion filed February 29, 1932.
    Hart E. Baker, for plaintiff in error; Gilbert, Rommel, Burger & Baker, of counsel.
    Fisher, Boyden, Bell, Boyd & Marshall, for defendant in error; David A. Watts, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff sued upon a promise to buy from,the plaintiff stock in the defendant company at the sum of $50 a share. He filed a declaration in three counts, two of which alleged an offer of defendant to buy and acceptance by plaintiff. Defendant filed a demurrer to the declaration. Upon hearing of the demurrer the parties stipulated that “defendant was incorporated August 8, 1929, under an act of the General Assembly of the State of Illinois entitled ‘An Act to Incorporate and Govern Fire, Marine and Inland Navigation Insurance Companies Doing Business in the State of Illinois,’ approved March 11, 1869, as subsequently amended, and has ever since remained incorporated thereunder, and that this fact should be taken into consideration by the Court as though it had been pleaded in the first two counts of the declaration.” The court sustained the demurrer as to the first two counts. Plaintiff withdrew the third count, and was ruled to file an amended declaration instanter, but refused to plead further, and electing to stand upon the first two counts suffered an involuntary nonsuit. Judgment for costs was entered against him, which he seeks to reverse by this appeal.

The. question presented is whether the promise of defendant insurance comjpany was ultra vires; in other words, whether a corporation organized under the Insurance Act, Cahill’s St. ch. 73, may lawfully contract to purchase shares of its own stock.

In England the rule seems to be that a corporation does not have this power, even if the articles of association expressly authorize the purchase. Trevor v. Whitworth, L. R. 12 App. Cas. 409; 1 Machen on Corporations (1908), sec. 628; 1 Morawetz on Private Corporations (2nd ed.), secs. 112-113; 2 Minnesota Law Review, pp. 456-460. The prevailing rule in the courts of this country is to the contrary, although the ruling has been questioned (2 Minn. Law Reviews 466), and a respectable minority of our courts follows the English rule. In Machen on Modern Law Corporations, vol. 1, secs. 626, 627 and 628, the purchase by a corporation of its own shares of stock is described as a “subtle method” of evading the rule against unauthorized reductions of capital stock although the author admits a majority of the American courts decline to follow the English rule provided the purchase is bona fide and does not endanger the claims of creditors. In Morawetz on Corporations, vol. 1, sec. 112, the author says in substance that no verbiage can disguise the fact that a purchase by a corporation of its own shares of stock really amounts to a reduction of the assets of the corporation and that the shares do in fact remain extinguished at least until a reissue has taken place. The supposed dangers incident to the exercise of this power have led a number of the States to enact statutes expr-esalyAArbidding’ such contracts. 2 Fletcher, Cyclopedia of Corporations, sec. 1139, p. 2098. It is expressly forbidden ^banking corporation organized under the national act7""{TH" S. Rev. Stats., sec. 5201.) The learned author of Thompson on Corporations (vol. 5, sec. 4075, p. 622), says that the majority rule seems to be “emphatically opposed” in the minority of the States (see also sec. 4076, p. 625), and it has been expressly held by the Supreme Court of Illinois that such an agreement eannnt-be-enfereed to the injury of, creditors. (Olmstead v. Vance & Jones Co., 196 Ill. 236.) Ordinarily, according to the majority rule, an insurance, like any other corporation, may purchase its own shares for a legitimate purpose, but it is sometimes prohibited from doing so by statute. (32 Corpus Juris, sec. 64, p. 1016.)

The reasons usually advanced against judicial approval of such a purchase are (1) that it violates the rights of creditors by decreasing the capitalization of the corporation; (2) that it violates the rights of non-assenting stockholders by decreasing the number of shares, thus giving added power to the majority stockholders» at the expense of the minority; and (3) that it allows ;hp ¡corporation to reduce its capital stock by an indi •opt method, u ( ' , f

Courts generally seem to hold that a corporation may accept its shares returned where an option to return was given at the time of original purchase.

The question of the power of a railway company in Illinois to make a valid agreement for the purchase of its own shares was considered in Chicago, P. & S. W. R. Co. v. Marseilles, 84 Ill. 145, where the Supreme Court of our State, referring to a plea which denied the power of a corporation to make such a contract, said:

“We entertain no doubt that a railroad company may, for legitimate purposes, purchase shares of stock which have been issued to individuals. Such is believed to have been the general custom of such bodies, nor have we known the power to have been questioned. There is nothing in this plea to show that this purchase was not for legitimate purposes.” A rehearing was granted in that case and a later opinion filed, which appears in the same volume at page 643. After reviewing cases from the jurisdictions of Ohio, New York, Maryland and Vermont, the court said:
“These authorities, we think, fully recognize the power of the directors of a company, when not prohibited by their-charter, to purchase shares of stock of their company. ...
“If it were shown that the purchase was made to promote the interests of the officers of the company alone, and not the stockholders generally, or if for the benefit of a portion of the stockholders and not all, or for the injury of all or only a portion of them, or if it operated to the injury of creditors, or would defeat the end for which the body was created, or if it was done for any other fraudulent purpose, then chancery could interfere. In such case Melvm v. The Lamar Ins. Co., 80 111. 446, and other cases in chancery referred to in appellant’s brief, would apply, but the defense cannot be made at law.”

- In Chetlain v. Republic Life Ins. Co., 86 Ill. 220, the question whether a life insurance company had such power was considered. The opinion states: “There are numerous cases which hold that a corporation do so and violate no duty to the stockholders, unless prohibited by its -charter.”

In Clapp v. Peterson, 104 Ill. 26, the question arose with reference to stock of the Illinois Land and Loan Company, a corporation which had been chartered by an act of the legislature in 1867. The capital stock of $100,000 had been all paid in, and thereafter Clapp, a nonresident stockholder, surrendered 555 shares of stock to the company, in consideration of which the company executed to him a deed for two lots in Chicago of the value of about $55,000, and the stock which was at that time considered of par value, was canceled. Thereafter a creditor obtained a decree against the company and execution having been returned nulla bona, filed a bill in chancery to subject the property in the hands of Clapp to the payment of the decree. She obtained a decree in her favor, and upon appeal to the Supreme Court it was urged for reversal that a corporation might purchase its own stock in exchange for money or other property and hold, reissue or retire the same, provided such act was done in good faith, was an exchange of equal value and was free from all fraud, actual or constructive, the corporation being neither insolvent nor in the process of dissolution. The Supreme Court stated that to this statement must be added the further condition that the rights of creditors were not affected, but that the shareholders of a corporation were conclusively charged with notice of the trust character of its capital stock in favor of creditors; that as to it they could not occupy the status of innocent purchasers but were to all intents and purposes privies to the trust. The court further said:

“When, therefore, they have in their hands any of this trust fund, they hold it cum onere, subject to all the equities which attach to it. Thompson’s Liability of Stockholders, sec. 13; Wood v. Dummer, 3 Mason, 312.”

Republic Life Ins. Co. v. Swigert, 135 Ill. 150, is the case upon which the plaintiff most relies. The facts in brief were that on May 25, 1877, the State auditor filed his petition against the company under an act for the dissolution of insurance companies, approved February 17, 1874. The corporation appeared on the same day, admitted the matters alleged in the bill, and without objection on its part a receiver was appointed. On December 1, 1877, the receiver presented a petition to the court in which it was set up that on June 11, 1873, the board of directors of the corporation passed resolutions to the effect that such of its stockholders as desired so to do might cancel all outstanding certificates of stock upon which 20 per cent has been paid, and that a new certificate to each stockholder for the number of shares at par represented by the 20 per cent already paid should be issued in place thereof; that the remainder of the stock should be held as unissued stock, subject to sale and issue, as the directors should deem best, but at par, and for cash, only, exclusive of expense and commissions. The petition alleged that a large number of subscribers surrendered their certificates of stock pursuant to the resolution, and that the receiver knew of no resources out of which he would be able to pay the balance of the liabilities of the company, unless the same could be collected from these stockholders and subscribers. He prayed for direction in the premises. The court entered an order authorizing and directing the receiver to institute such legal or equitable proceedings as he might be advised were necessary and proper against these subscribers and stockholders. The Eepublic Life. Insurance Co. sued out a writ assigning error by the court in not dismissing the petition of the auditor as prayed for by the corporation. Section 6 of the charter of the company provided that the real and personal property of each individual stockholder should be held liable for any and all liabilities of the company to the amount of stock held or subscribed by him and not actually paid in, and that in case of loss exceeding the means of the corporation each stockholder should be liable to the amount of stock unpaid for held by him. The opinion of the court states:

“A corporation may, if it acts in good faith, buy and sell shares of its own stock. (Chicago, Pekin and Southwestern Railroad Co. v. Marseilles, 84 Ill. 145; Same v. Same, id. 643; Chetlain v. Republic Life Ins. Co., 86 id. 220; Clapp v. Peterson, 104 id. 26.) ” The opinion of the court further states that the surrender by the stockholders as heretofore described was in substance and in legal effect a purchase by the company of the unpaid stock at its par value and that the transaction was not ultra vires; that the transaction was binding upon the company and the stockholders, and that the stockholders should be protected against further payments “unless there were, at the time of such transaction, existing creditors in respect to whose rights it was fraudulent. ’ ’ It was held that the order of the circuit court of January 31, 1878, authorizing the receiver to institute proceedings against the subscribers and stockholders, was erroneous and that part of the decree was reversed, while in other respects affirmed.

In Roush v. Illinois Oil Co., 180 Ill. App. 346, it appeared that in a contract for sale of its stock by a corporation there was a provision for a repurchase of the same by the corporation on demand of the purchaser. It was contended that this agreement to repurchase its shares was ultra vires, but this court held that even if it was ultra vires, the defense could not be successfully interposed because the contract had “in good faith been fully performed by the other party, and the corporation has had the benefit of such performance.” Kadish v. Garden City Equitable Loan & Bldg. Ass’n, 151 Ill. 531; Lurton v. Jacksonville Loan & Building Ass’n, 187 Ill. 141, and Republic Life Ins. Co. v. Swigert, 135 Ill. 150, were cited. The court further said:

“But the contracts in question are not obnoxious to the objection that they are ultra vires. A corporation may, if it acts in good faith, buy and sell shares of its own stock. First Nat. Bank of Peoria v. Peoria Watch Co., 191 Ill. 128; Republic Life Ins. Co. v. Swigert; 135 Ill. 150; Clapp v. Peterson, 104 Ill. 26; Chicago, P. & S. W. R. Co. v. Town of Marseilles, 84 Ill. 145.” The opinion adds: ‘1 The weight of authority in this country is in favor of the power of a corporation to purchase its own capital stock, except where the circumstances are such as to show that the purchase was fraudulent in fact, or that the corporation was insolvent, or in process or contemplation of dissolution at the time of such purchase. U. S. Mineral Co. v. Camden & Driscoll, 106 Va. 663; Wisconsin Lumber Co. v. Greene & W. Tel. Co., 127 Iowa 350; McIntyre v. E. Bement’s Sons, 146 Mich. 74; Ophir Consol. Mines Co. v. Brynteson, 74 C. C. A. 625, 1.43 Fed. 829; Freemont Carriage Mfg. Co. v. Thomsen, 65 Neb. 370; Porter v. Plymouth Gold Min. Co., 29 Mont. 347.”

This review of Illinois cases shows that the courts of this State are committed generally to the rule that a corporation may, in the absence of charter or statutory restrictions, purchase its own stock provided it acts in good faith and is neither insolvent nor in process of dissolution, and provided such purchase is not prejudicial to the rights of its creditors or stockholders. (See Gilchrist v. Highfield, 140 Wis. 476, 17 Am. & Eng. Anno. Cases, 1257, with note thereto on page 1261.)

The defendant corporation contends that the statute under which it was organized by necessary inference forbids such a purchase. The defendant company is incorporated under the act approved March 11, 1869, as amended. (See Public Laws of Illinois, 1869, p. 209; Cahill’s Ill. Rev. St. 1929, ch. 73, K127 et seq.) Section 4 of that act directs that the charter shall set forth the amount of the capital stock so to be employed in the business of the proposed corporation; section 6, that no such company shall be incorporated with a smaller capital'than $100,000, actually paid in, in cash; section 7, that the associated individuals may, upon the conditions named therein, open books for subscription to the capital stock of the company to be organized and keep the same open until the full amount specified is subscribed. ' Section 8 provides:

“That on and after July 1, 1909, any fire insurance company organized under this Act . . . for the purpose of investing its capital, surplus and other funds, or any part thereof, may purchase and hold as collateral security or otherwise, and sell and convey any bonds or public stock ... or the capital stock, bonds, securities or evidence of indebtedness created by any corporation or corporation organized under the laws of the United States, or of this or of any state, except the stock of mining companies and except the -stock of manufacturing companies . . .; And, provided, further, that no loans shall be made by any company on its own stock.” Cahill’s St. ch; 73, 136. Section 10 provides that the charter shall be examined by the superintendent of insurance and either he or three disinterested persons shall certify under oath that the capital has been paid in and is possessed by the company in money or in such stocks and bonds as are required by the eighth section of the act; that the corporators and officers shall also certify that the capital exhibited is the bona fide property of the company ; that this certificate shall be filed in the office of the insurance superintendent, who shall thereupon deliver to the company a certified copy of the charter and of these certificates, which upon the same being filed in the office of the clerk of the county where the company is to be located, shall be their authority to commence business and to issue policies. Section 16 provides that the trustees and corporators shall be severally liable for all debts or responsibilities to the amount by him or them subscribed until the whole amount of the capital of such company shall have been paid in and a certificate provided.- Section 18 makes provision for the increase or decrease of capital stock or amendment of the charter after notice published/ of such intentions, with the written consent of three-fourths of the stockholders, unless otherwise provided in its charter, and filing a copy of the charter of the company, as amended, in the office of the Director of Trade and Commerce and upon the same proceedings had as required by the tenth section of the act.

Defendant contends that the provisions of the statute that require the capital stock named in the charter to be fully paid up before the corporation may engage in business, by necessary inference creates such capital stock to that amount a statutory “minimum” which cannot be purchased by the corporation. Defendant says that since the case of Butler v. Walker, 80 Ill. 345, these provisions have been uniformly construed to require the entire capital named in the charter to be fully paid in as a condition precedent to the lawful doing of business of the corporation; that this ruling was adhered to in Gulliver v. Roelle, 100 Ill. 141; Diversey v. Smith, 103 Ill. 378; Gent v. Manufacturers’ & Merchants’ Mut. Ins. Co., 107 Ill. 652, and People v. Mackey, 255 Ill. 144. These cases in substance hold that although the amount of the capital named may be as low as $100,000, still if the charter names a larger amount it must all be paid in before the company begins business. (See also Tibballs v. Libby, 87 Ill. 142; Weidenger v. Spruance, 101 Ill. 278, and Arenz v. Weir, 89 Ill. 25.)

Defendant argues that since the whole amount of the capital stock must be fully paid up before the corporation may lawfully begin business, this is in effect its “statutory minimum capital stock,” and. that if the corporation might contract to purchase this stock, the entire purpose of the statute could be defeated. Defendant says diligent search discloses “no court has ever held that a corporation may purchase its own shares when such purchase will reduce its capital below the minimum statutory amount.” Defendant says that the existence of a surplus, the disposition to be made of the -stock purchased, and the danger to creditors are all immaterial; that since the legislature has. fixed a minimum capital stock to the amount named in the charter, the purchase of one share of this stock reduces that minimum. In support of this theory it cites a few cases from other jurisdictions, evidently relying much on Crandall v. Lincoln, 52 Conn. 73. That case discloses a bill in equity brought by the receivers of a trust company against a number of former stockholders who had sold their shares of stock to the company and who had been paid for the same out of its capital. The trust company in question was incorporated by an act of the General Assembly in 1871. Its charter gave it the power to receive money in trust and on deposit, and one of the sections provided that all the capital stock.and property of the corporation should be charged with the fulfillment of these trusts and the payment of the deposits. The court held that the capital stock could not be divided among the stockholders to the prejudice of the creditors — a proposition which we think practically all the cases hold. The opinion states:

“The statute fixing the minimum number of shares and their par value determined as far as practicable the minimum value of the capital stock, and it was clearly the intention of the legislature that it should be no less. The number of shares, therefore, could not be reduced,- and the value of the shares diminished, except by legislative authority. If the trustees could purchase stock with the capital of the corporation, they could of their own authority reduce the number of shares and correspondingly diminish the aggregate value of all the shares. Again, if they may purchase any of the stock, they may purchase all of it, and thus divide all the stock among the stockholders.”

The statute under which the proceeding was brought there was essentially different from that under which this defendant corporation was organized. Moreover, the proceeding was by a receiver in behalf of creditors who had been defrauded by the sale and purchase of the stock. In this State our courts would have held, under similar circumstances, that the creditors might not be thus defrauded. The statement is mere dictum. Indeed, the lengthy opinion in another part states, “It may be allowable for. a company to purchase stock temporarily with its surplus.”

Defendant also cites German Savings Bank v. Wulfekuhler, 19 Kan. 60, and Abeles v. Cochran, 22 Kan. 405. In each case, however, the Kansas statute which forbade the purchase of its own stock by a banking corporation except under particular circumstances, which did not exist in either case, was involved. In the German Savings Bank v. Wulfekuhler case, the court said:

“A bank cannot purchase its own stock, except in some few cases for the purpose of securing some previously-existing debt. . . . For a bank to use its funds in the purchase of stock is to withdraw that much of its capital from legitimate banking business; and to purchase its own stock is in effect a withdrawal of that much of its stock from actual existence, and in that way the bank might reduce the amount of its capital stock below the amount required by law, (to-wit, $50,000; Gen. Stat.- 225, sec. 128), and might also impair or even destroy all security given by law to the creditors of the bank.” This may have been true under the facts which there appear. It is not true under the facts disclosed by the record before us. The law under which defendant is. mcorporaied-dues not impose a double-liability on stockholders. There is nothing here from which even an inference may be drawn that the purchase of these shares would reduce the capital stock below what defendant calls the “irreducible minimum. ’ ’ For aught that here appears, defendant may have surplus funds from which the purchase price of the stock will be paid. The contract of purchase does not carry with it. the obligation to cancel the stock. In Republic Life Ins. Co. v. Swigert, supra, there was an “irreducible minimum” of capital stock required by statute for the corporation involved, although the statute applicable did not require that all of the stock should be paid in before the corporation might begin to do business, but the capital stock of every corporation for profit, whether paid or only subscribed, is a trust fund for the payment of the debts of the corporation. Coleman v. Howe, 154 Ill. 458; Central Illinois Pub. Service Co. v. Swartz, 284 Ill. 108.

Defendant here did not file any plea tending to show > that the purchase of this stock would result in reducing the' capital stock below what it calls the “irreducible minimum,” or that it would injure any creditor or result in any injustice to any stockholder. In the absence of a plea of this nature, we cannot assume that \such would be the result in view of the long line of decisions in this State which hold to the contrary. Under the theory adhered to by the courts of this State, in the absence of unfair dealing or fraud of some kind, there is no reason why a corporation cannot purchase all its own stock and retire from business and by this method distribute its assets to its stockholders. The federal courts have expressly held it may. Mannington v. Hocking Valley Ry. Co., 183 Fed. 133.

In the second place, defendant contends that section 8 of the Fire Insurance Statute, Cahill’s St. ch. 73, If 136, by prohibiting the defendant company from making any loans on its own- stock, necessarily prohibits the company from purchasing such stock, and that plaintiff’s argument that the language of section 8 permitting the purchase of the stock of any corporation covers its own stock reduces the statute as a whole and its purpose, as declared by the Supreme Court of Illinois, to an absurdity. Defendant says that the provision of section 8 which forbids loans upon a company’s own stock is a stricter prohibition than that imposed by those jurisdictions which forbid the purchase by a company of its own shares, pointing out that in such jurisdictions a corporation may usually take its own stock as collateral security, and it cites authorities such as Dalzell v. Commercial Bank, 82 Mo. App. 264; Bear Creek Lumber Co. v. Second Nat. Bank of Cumberland, 120 Md. 566; Coppin v. Greenlees & Ransom Co., 38 Ohio St. 275; 2 Fletcher Cyclopedia of Corporations, sec. 1142; 5 Thompson on Corporations (3rd ed.), sec. 4089, and 1 Machen on Corporations (1908), sec. 638. The cases cited do not sustain the proposition. Harker v. Relston Purina Co., 45 F. (2d) 929. Defendant also again cites Crandall v. Lincoln, where in the construction of the statute under which the corporation in that case was organized, the court said that a clause of the statute which forbade the declaration of dividends except from earnings, etc., adding, “Nor make any loan or discount on a pledge of its own stock,” “By necessary implication forbids the company from purchasing its own stock.”

We have already shown how the facts of that case, as well as the law under which the corporation was organized, distinguish it from this. The point made, of course, in the last analysis depends upon the construction to be given to section 8 of the Fire Insurance Statute. If it had been the intention of the legislature to prohibit the purchase by a fire insurance corporation of its own stock, it seems strange indeed that appropriate language to convey that thought was not used. The question of policy seems to have been considered by the legislature with reference to life insurance companies in 1907, Cahill’s St. ch. 73, If 368; Smith-Hurd’s Ill. Rev. Stats. 1931, ch. 73, par. 258, p. 1693. That paragraph expressly forbade the purchase by a life insurance company of stock in any other life insurance company, thus by clear implication allowing it to make a purchase of its own stock. Although that act was amended as late as July 7, 1931 (Laws of Illinois 1931, p. 640), it does not appear that any change was made in this respect. Paragraph 23 of chapter 73 was also amended on that date, Cahill’s St. ch. 73, j[ 136 (Smith-Hurd’s Ill. Rev. Stats. 1931, p. 1649), and the securities in which a fire insurance company might or might not invest its funds seem to have been carefully enumerated. It is significant that there is no provision which forbids the purchase by such a corporation of its own stock. The prohibition that it make no loans on its own stock is, however, retained. >

Defendant asserts that making a loan is a less serious act and of the same nature as the pur chas eby a company of its own stock. If that question may be considered as for the courts, we would hold otherwise for many reasons. A corporation does not get title to stock which it takes as collateral, and in case default is made on a loan thus secured it would be required to follow strictly a long and highly involved technical procedure to foreclose its loan. This danger alone may well have been the reason which induced the legislature to enact this restriction. It would seem to be hardly necessary to point out the many respects in which an absolute purchase may be distinguished from a loan upon collateral. We may not assume that the legislature was not able to discern these distinctions nor that if it had been its intention to forbid the purchase of its own stock by such a corporation, it would have failed to forbid it in plain and unambiguous language. The judicial department of the government is not permitted to usurp the functions of the legislative department. We have the right and it is onr duty to interpret an act passed by the legislature, but we have no power or authority to rewrite it. The question of policy is for the legislative rather than for the judicial department of the government. The entire matter is one which we think is for legislative discretion. Whether public and private interests would be best served by a rule absolutely forbidding a corporation to deal in or purchase its own stock is for the legislature to determine. That such purchases make possible frauds upon creditors, minority stockholders and others, are facts recognized in the decisions of the courts of our State which hold that equity will always grant relief in such cases. The reasoning upon which other courts have denied the right of a corporation to purchase its own stock has not met with the approval of the courts of Illinois. Republic Life Ins. Co. v. Swigert, 135 Ill. 150, and other Illinois cases cited, are decisive. If it had been the intention of the legislature to change the long established rule and enact a contrary one, we may not doubt language would have been used so clear and unambiguous that no construction by inference would be necessary.

We hold that the court erred in sustaining the demurrer and in entering judgment against plaintiff, and for these errors the judgment will be reversed and the cause remanded with directions to the trial court to enter a rule upon the defendant to plead to plaintiff’s declaration.

Reversed and remanded with directions.

0 ’Connor, P. J., and McSurely, J., concur.


text:
    John C. Foerster, Appellee, v. The L. Fish Furniture Company, Appellant.
    Gen. No. 35,497.
    Heard in the first division of this court for the first district at the October term, 1931.
    Opinion filed February 29, 1932.
    D’Ancona, Pflaum & Kohlsaat, for appellant.
    Newell Mecartney, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Foerster sued to recover $50 which he paid to the defendant company as the first instalment on the price of a radio. There was a trial by the court and a finding for plaintiff in the amount claimed, with judgment on the finding, which defendant seeks to reverse by this appeal.

It is contended in the first place that the judgment is contrary to the weight of the evidence. It appears that the defendant corporation is engaged in merchandising in the city of Chicago and, among other articles of furniture, offered radios for sale. On December 27, 1929, it caused an advertisement to be inserted in one of the Chicago papers which stated there was a great clearance of floor samples of nationally known radios at reductions of 35 per cent to 60 per cent. The advertisement stated, “Greatest radio values of all time! Come early for best selections! 30 days’ trial on any radio selected.” Other similar advertisements were placed by defendant in the papers of Chicago at about the same time, in one of which appeared the cut of a radio and in enlarged letters under it the statement, “30 Days’ Trial,” and in the body of the advertisement the statement, “Buy it on 30 days’ trial.”

After reading one of these advertisements, on December 28, 1929, plaintiff went to a branch store of defendant and asked a salesman to show him one of these advertised radios. He was shown the radio and heard it play, and the salesman told him it would work better in his own home than in the store. Plaintiff testified the salesman told him that they would guarantee the set and sold it on a 30 days’ trial. Plaintiff then selected a radio and made a deposit of $50, as he says, agreeing to pay the balance in installments. The radio was delivered to his home on December 31. The salesman had promised to have the radio installed, but instead plaintiff had a friend attend to its installation. However, a man was sent by defendant to plaintiff’s home for that purpose, and another man from the defendant store inspected the radio and changed the tubes after plaintiff had made a complaint about the radio. The radio proving unsatisfactory, defendant took it back to the store and sent out another set, which was never installed, and when defendant sent a man out to install it, Mrs. Foerster refused to let him enter the house.

The salesman testified that he told plaintiff at the time he sold the radio that if it was not satisfactory defendant would exchange it for another, but that he did not say that plaintiff would get his money back. The salesman also testified that plaintiff signed a sales agreement (which was produced and over objection admitted in evidence) and that plaintiff was at that time given a carbon copy of it which, however, did not contain all the printed matter of the original agreement.

A radio service man for defendant testified, but in most respects his testimony does not conflict with that of plaintiff. He said that he tried out the radio which was installed in plaintiff’s home and “it operated pretty good”; that a few days later plaintiff complained that, “There was a great deal of interference with the functioning of the radio”; that he went to plaintiff’s home to install the second radio but was refused admittance.

Defendant’s credit manager testified that plaintiff asked a refund of the $50 paid, which the manager refused ; but that he told plaintiff that he would be glad to install a new set in exchange for the old one. This witness also testified to the effect that he was familiar with the advertising of defendant, and, as already stated, two of these advertisements were admitted in evidence.

It appears that plaintiff could read English but that he did not read the 14 lines of almost obscure print at the bottom of the sales slip bearing his signature.

Defendant says it is difficult to find any theory of law or fact that would entitle plaintiff to a return of the $50 deposit, but the trial court apparently believed "the testimony of plaintiff to the effect that the purchase of the radio was only upon approval, and if that is true, we think there would be an implied promise to return the deposit. If plaintiff within the time limited elected not to complete the purchase, it would hardly be reasonable to suppose that plaintiff was paying $50 for a 30-day option on a radio of the price of $140.

Defendant also contends that the court erred in admitting over its objections evidence as to the advertisements, on the theory that the printed matter contained the entire contract in writing which could not be varied by oral evidence. Defendant cites to this point Harmony Cafeteria Co. v. International Supply Co., 249 Ill. App. 532, which states the general rule to that effect. The record hardly bears out the contention, however, that defendant tried the case upon the theory that this writing contained the entire contract. On the contrary, evidence as to the oral conversations at the time of the sale and afterwards was offered by both parties and received without objection by either. However, the record shows an objection by defendant to the admission of the advertisements. It is apparent, we think, that the almost obscure printed matter appearing only on that part of "the sales slip retained by defendant was never intended by the parties to constitute the entire contract. An examination of this supposed contract discloses, among other things, a purported assignment of plaintiff’s wages,' — -a subject which it is apparent was never called to plaintiff’s attention. This supposed contract, almost invisible to the naked eye, does not commend defendant’s business methods. It was evidently not intended to be read by the customer.

The judgment is affirmed.

Affirmed.

O’Connor, P. J., and McSurely, J;, concur.