author: Mr. Presiding Justice Gridley

text:
    John J. Miller, Administrator of the Estate of Donald Miller, Deceased, Appellee, v. Lawrence McHale, Appellant.
    Gen. No. 35,101.
    Opinion filed November 24, 1931.
    Cassels, Potter & Bentley, for appellant; Ralph F. Potter, Kenneth B. Hawkins and George C. Bunge, of counsel.
    Royal W. Irwin, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

In an action for damages for the negligent killing of plaintiff’s intestate in an automobile accident in the Village of Wilmette, Illinois, on the afternoon of October 9, 1929, there was a trial before a jury in January, 1931, resulting in a verdict and judgment against defendant for $7,000. The present appeal followed.

Plaintiff’s declaration consisted of four counts. The first alleged in substance that on October 9, 1929, defendant possessed a motor vehicle which he caused to be propelled over Lake avenue, an east- and west highway, at and near the intersection of 17th street in said village; that plaintiff’s intestate was a small boy and was then and there rightfully passing over said highway in the exercise of ordinary care for one of his age, intelligence and experience; and that defendant then and there, “through his servants and employees,” negligently caused said vehicle to run into and strike plaintiff’s intestate, resulting in severely injuring and killing him. In the second count the charge is wilful and wanton negligence. In the third and fourth counts the respective charges are the negligent propelling of the vehicle at a dangerous rate of speed without giving warning of its approach, and the negligent propelling through a residence portion of an incorporated village at a speed of 30 miles an hour. In the three last mentioned counts it is also alleged that defendant did the negligent acts “through his servants and employees” or “by and through his servants.”

Defendant filed two pleas, (1) general issue and (2) a special plea that he (defendant) “did not then and there possess, operate, propel, run or cause the vehicle to strike plaintiff.”

On the trial eight witnesses testified for plaintiff as to the details of the accident. Three of the witnesses were John Jordan, Clarence Steffens and Raymond Steffens, all boys under 18 years of age and passengers in the automobile which was being driven at the time by Lawrence McHale, Jr., about 17 years of age and the son of defendant. During the introduction of plaintiff’s evidence defendant admitted that he was the owner of the automobile and that the State license for it for the year 1929 was in his name. This, however, was the extent of the admission, — defendant contending that he was under no liability to plaintiff because his son was not driving the car as his agent or servant. At the conclusion of plaintiff’s evidence defendant moved for a directed verdict in his favor but the motion was denied and an exception taken. Thereupon defendant introduced certain documentary evidence and called two witnesses — one of whom was his said son. Defendant did not himself testify. He was not in the automobile at the time of the accident. At the conclusion of all the evidence defendant again moved for a directed verdict but the motion again was denied and an exception taken. Thereupon the attorneys for the respective parties made their arguments to the jury .and the court gave to the jury certain instructions, some of which were submitted by defendant.

The following facts in substance are disclosed: The automobile had been purchased by defendant several years before the day of the accident and had been used by members of the McHale family for their convenience and pleasure, with the knowledge and consent of defendant. Lawrence, the son, had been accustomed to drive it to and from the New Trier high school, where he was a student. The school was about three miles from the McHale home, which was in Wilmette. During the afternoon Lawrence, accompanied by John Jordan, a fellow student at the school, left the school and, after driving to Evanston on an errand, returned to Wilmette and went to Jordan’s home on Washington street, opposite the home of the Steffens boys. Soon the Steffens boys appeared and got into the automobile. All four- boys were neighbors and friends. Clarence Steffens took a seat in front and to the right of Lawrence, who was in the driver’s seat. Raymond Steffens and Jordan seated themselves in the rear seat. While thus seated they chatted and visited together. Soon the village siren or fire whistle blew and shortly afterwards the boys heard a fire engine traveling on Lake avenue, about two blocks away. They all decided to go and try to find where the fire was and witness it. Lawrence, who was at the wheel, drove the automobile east on Washington street, thence north on 16th street and thence west on Lake avenue. As it was crossing 17th street and moving westerly on Lake avenue, at a rapid rate of speed, and at about six o’clock p. m., all testified that they felt a jar and Lawrence stopped the automobile alongside the north curb about 60 feet west of 17th street. After they had alighted all discovered, for the first time as they testified, that the car had struck Donald Miller, a boy under 7 years of age and who was attempting at the time to cross Lake avenue, on the west crosswalk of 17th street, with, but not on, his tricycle. They found Donald’s body lying in the street about 20 feet back of the automobile. Donald died before he reached the hospital to which he was taken. ■ It further appeared in substance from the testimony of two police officers of the village (plaintiff’s witnesses) who arrived at the place of the accident shortly thereafter, that they found a little tricycle underneath the front of the car, “wedged in between the axle and bumper,” and which tricycle was taken out; and that they observed several marks on the pavement of Lake avenue “like something sharp scraping on the road,” which were “not skidding marks,” from the west crosswalk of 17th street and for a considerable distance to the west thereof. It further appeared that Lake avenue was a paved highway in good condition and much traveled upon, had about a year before been designated by ordinance as a “through street,” and that “stop signs” were erected at all cross streets; that just prior to the accident Donald Miller, his older brother, Robert, and two other boys, had been standing at the southwest corner of the two streets, waiting to cross Lake avenue; that the east and west.traffic then was rather heavy; that suddenly Donald “dashed across like a flash” with his tricycle to his left; that Robert called to him to come back; and that just as he was turning to do so he was struck by the automobile.

The sole ground for the reversal of the judgment, as urged by defendant’s counsel, is that the court erred in not granting defendant’s motions, made at the close of plaintiff’s evidence and again at the close of all the evidence, for a directed verdict in his favor. After carefully reviewing the evidence, and considering recent decisions of the Supreme Court of this State, we feel constrained to hold, and do hold, that said motions should have been granted, and that, notwithstanding the driver’s negligence which apparently was the proximate cause of the deceased’s death, defendant is not liable in this action to plaintiff, for the reason that said driver of defendant’s car was not at the time defendant’s servant or agent, but was using the car for a purpose or pleasure of his own, though with defendant’s consent.

In the recent case of White v. Seitz, 342 Ill. 266, decided in December, 1930, the facts are similar to those in the present case. After discussing the prior decisions in Arkin v. Page, 287 Ill. 420, Graham v. Page, 300 Ill. 40, and Gates v. Mader, 316 Ill. 313, our Supreme Court says in part (pp. 271-273):

“These three are the cases which announce the law in this State, and they establish these propositions: That a parent is not liable for the tort of his minor child merely from the relation; that the owner of an automobile who merely permits another to use it for his own purposes is not liable for the negligence of the person so using it; that the owner of an automobile is not liable for an injury occasioned by the negligent use of the machine by his servant if the servant was at the time at liberty from the service of his master and not engaged in doing his master’s business but was pursuing his own interests exclusively; and that the relation of master and servant is not established between the owner of an automobile' and his minor son by the mere fact that the father purchased the machine for the pleasure of the family and that he permitted his son to use it for his own pleasure.

i < There had been, and still was, much conflict in the decisions of the courts of different States on the questions involved in what has come to be known as the ‘family purposes’ doctrine in regard to automobiles at the time the Arhin case was decided at the April term, 1919, as.is indicated by the two opinions in that case, and there was also some difference of opinion as to where the weight of authority lay, as the opinions also indicate. Since that time numerous decisions have been made in many States on the questions which have arisen in a great variety of cases on different states of fact. It can hardly be said that the result has been to clarify the situation. . . . On one thing the decisions seem to be agreed, — the principle that liability for the tort cannot be based upon the relation of parent and child. But in some cases, if not many, the statement of the principle is accompanied by an argument based on the greater danger involved in the use of the automobile than of other means of transportation, its excessive weight, its possible speed, the difficulty of collecting the judgment of minors or others whom the owner may have permitted to use the machine, and it has been suggested that the dictates of natural justice require that the owner of an automobile should be responsible for its negligent operation, because only by so doing, as a general rule, can substantial justice be attained, and that the practical administration of justice between the parties is more the duty of the courts than the preservation of some esoteric theory concerning the law of principal and agent. Of course, this is a frank and complete abandonment of the relation of master and servant as the basis of liability of the owner of an automobile driven by another by the owner’s permission, and it seems to be an abandonment of the principle of the administration of justice between man and man according to the orderly process of the law regulated by established rules, esoteric or otherwise. The use of the automobile on public highways is subject to the police power of the State, which has been exercised in this State by the passage of the Motor Vehicle' Act and other acts. That power, however, is legislative and not to be exercised by the courts. The reasoning of some of the opinions in this connection seems appropriate enough for consideration in relation to proposed legislative action but not as the basis of a declaration of a new rule governing judicial action.

“In the ArJcin case the driver of the car was a minor son of the defendant using the car exclusively for his own purposes of pleasure or business but not for his father in any way and the father was held not liable for his negligence. There is a conflict among the decisions on this question. . . . The arguments have been stated, the conclusion heretofore announced by this court is clear, and no new reason appears which should induce a change of view. . . . There is a

greater volume of decided cases than when the Arkin case was decided but the conflict of opinion is no less. We considered in that case all the arguments presented and we have reconsidered them in the light of the cases since decided. We adhere to the views there expressed.”

In the more recent case of Andersen v. Byrnes, 344 Ill. 240, decided on similar facts in April, 1931, the decision and holdings in the Arkin and White cases are discussed and followed. And the court said in conclusion (p. 245): “The doctrine known as the ‘family purpose’ doctrine, in the courts which follow it, is not the law in Illinois. Under the rules thus announced there is no liability on the part of the plaintiff in error (defendant).”

In the present case plaintiff’s counsel here contends in substance that because during the introduction of plaintiff’s evidence defendant admitted the ownership of the car, a prima facie case, or presumption, of liability on his part- was shown, necessitating the cause being submitted to the jury, and that, hence, the trial court did not err in refusing defendant’s said motions, made at the close of plaintiff’s evidence and again at the close of all the evidence. We find no merit in the contention. After defendant’s admission of ownership of the car was made, it appeared from the un: contradicted testimony of some of plaintiff’s witnesses, as well as from defendant’s witness (his son), that at and before the time of the accident the son was not driving the car as defendant’s servant, or on a business of defendant, but solely for a purpose or pleasure of his own. And we think what is said and held in Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387, 395-7 (italics ours) is applicable: “Different views have been expressed by some of the courts whose decisions have been cited, on the question whether mere ownership of the car and its operation by the owner’s servant show a prima facie- case of liability of the owner for damages following an accident caused by negligent operation, without proof that the operation was in the master’s business and within the scope of the servant’s authority. If we assume, however, for this case (what we do not decide), that a prima facie case is made as claimed by the defendant in error’s (plaintiff’s) counsel, it does not follow that the case must necessarily go to the jury, and the motion to direct the verdict did not present a question of law.” After stating certain language in Shannon v. Nightingale (321 Ill. 168, 176), relied upon by the plaintiff in the Nelson case, and further stating that “this language was too unguarded and should be qualified,” the court in the Nelson case continues: “The question is whether there is evidence to sustain every element of the plaintiff’s case necessary to he proved to sustain the cause of action.” The court then referred to the case of Lohr v. Barhmann (335 Ill. 335, 340), and, quoting from that case, said (p. 397): “Presumptions are never indulged where established facts exist. They supply the place of facts. When evidence is produced which is contrary to the presumption, the presumption vanishes entirely.” (See, also, Bollenbach v. Bloomenthal, 341 Ill. 539, 547.)

Equally without merit, in our opinion, is plaintiff’s counsel’s further contention that because, after said motions for a directed verdict had been denied, defendant by his attorney argued to the jury the question of the negligence of the driver of the car only, and thereafter requested the court to give certain offered instructions on the issue of his negligence only, defendant took an inconsistent position and waived his right to here assign- error on the denial of said motions. In Nosal v. International Harvester Co., 187 Ill. App. 411, 412, it is decided that after an adverse ruling on a motion for a peremptory instruction, a defendant may proceed with his defense on the theory of the law adopted by the court without waiving his right to have said ruling of the court reviewed on appeal. There are numerous other decisions to the same effect by our courts of review. (West Chicago Street R. Co. v. Liderman, 187 Ill. 463, 468; Chicago Union Traction Co. v. O’Donnell, 211 Ill. 349, 350-1; Illinois Cent. R. Co. v. Swift, 213 Ill. 307, 313; Cutler v. Gardiner Metal Co., 225 Ill. App. 497, 500-1.) In the cited Swift case, decided before the amendment to section 81 of the Practice Act was made in 1911, our Supreme Court said (p. 313): “The motion for a peremptory instruction presents a pure question of law, and, in the event of an adverse ruling, an exception preserves that question of law for the consideration of an appellate tribunal. After that adverse decision the defendant máy argue to the jury that its guilt is not shown by a preponderance of the evidence, which is purely a question of fact, and the submission of that question of fact to the jury by instructions offered by the defendant does not waive the question of law already passed upon by the court where the defendant’s rights have been properly preserved. This has been the universal practice in this State for many years and will not now be disturbed.”

For the reasons indicated the judgment of the circuit court, appealed from, must be and is reversed for errors of law on the part of the trial court.

Beversed.

Keener and Scanlan, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A. L. Strachan & Son for the Use of Continental Casualty Company, Appellee, v. Illinois Brick Teaming Company, Appellant.
    Gen. No. 35,264.
    Opinion filed November 24, 1931.
    Geo. D. Anthony, for appellant; John E. Wilson, of counsel.
    Abraham Lepine, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

In a 4th class action in tort, commenced in the municipal court on April 5, 1929, there was a trial before a jury in February, 1931, resulting in a verdict finding defendant guilty in manner and form as charged in plaintiff’s statement of claim and assessing plaintiff’s damages at $283.75. After overruling motions for a new trial and in arrest of judgment the court, on March 7,1931, entered judgment on the. verdict against defendant, and the present appeal followed.

In its statement of claim plaintiff alleged in substance that on May 6, 1927, it had in its employ one John Hayes, who was standing in the 63rd street team tracks of the Baltimore and Ohio Railroad Co., in Chicago, and who was then and there in the exercise of due care for his own safety; and that defendant then and there so carelessly and negligently operated its autotruck that it collided with and against Hayes and severely injured him. Plaintiff further alleged that under and by virtue of the Illinois Workmen’s Compensation Act, Cahill’s St. ch. 48, If 201 et seq., it became liable for medical and hospital bills and compensation payments for Hayes; that the Continental Casualty Co., by virtue of a certain policy issued to plaintiff, assumed such obligations and did pay out the sum of $283.75; and that, under and by virtue of said Compensation Act, it became subrogated to the rights of Hayes, etc.

In defendant’s affidavit of merits it denied that Hayes at the time of the accident was in the exercise of due care for his own safety; denied any negligence on its part; denied that it was in any way liable for Hayes’ claimed injuries; and alleged that it had no knowlédge of plaintiff’s obligations to Hayes for compensation payments, etc., or of plaintiff’s policy issued by the Continental Casualty Company, or of payments made under it by said Casualty Co., and demanded strict proof thereof.

On the trial plaintiff called as witnesses said Hayes and George P. McLannon, another of its employees, and both testified as to the details of the accident. Plaintiff introduced further oral and documentary evidence (not abstracted) tending to prove those allegations of its statement of claim as to its liability to Hayes for compensation payments, etc., as to its policy in the Continental Casualty Co., and as to the payments (aggregating $283.75) made thereunder by said Casualty Co. As to these last mentioned matters- there is no contest on this appeal. Defendant’s counsel, in their brief here filed, state: “We are eliminating these points, both in abstracting the evidence and in this brief, and have limited this appeal to the questions of the contributory negligence on the part of the injured man (Hayes), the lack of negligence on the part of defendant, and the court’s errors in overruling defendant’s motions to direct the jury to find defendant not guilty and in refusing to grant a new trial.” Defendant’s two witnesses were Fred Kinnigike, a helper on defendant’s truck, and Marion Kozloski, the driver of the truck.

The evidence disclosed that at the time of the accident (May 6, 1927) the Baltimore and Ohio R. R. Co. maintained at least two team tracks north of 63rd street (ail east and west street) in Chicago. These tracks ran in a northerly and southerly direction. Between them was a gravel or stone roadway 25 feet wide at least. There were freight cars standing on both tracks. Teams (i. e., horses and wagons) and auto-trucks were accustomed to drive onto the roadway from 63rd street and receive freight from the cars. Hayes testified in substance on direct examination that he was in plaintiff’s employ as a teamster; that early in the morning he went to the team tracks, driving a team of horses hitched to a four-ton coal wagon, to get a load of cement out of a freight car, which was standing with othér cars on the track immediately east of the roadway,- that after driving his team onto the roadway he stopped close to the line of freight cars on said east track; that the team and wagon were facing north and less than one foot away from one of the cars on said east track; that he could not immediately get access to the particular car from which he was to obtain the cement; that he assisted another teamster in loading a wagon from another freight car; that his turn came, and he went back to the rear of his wagon for the purpose of “letting the tail gate down,” before moving his wagon to the proper freight car; that as he was standing at the rear of his wagon, with his face to the north, he opened the tail gate and immediately stepped towards the left (west) and then towards the north alongside and close to the west side of his wagon, intending to get up upon the driver’s seat; and that when he had taken about two steps to the north, defendant’s truck, coming from the south and which he had not seen, struck him, knocked- him down and broke one of his legs, etc. On cross-examination he testified in substance that the box of his wagon is about four feet wide; that at the time of the accident there was no wagon standing opposite to him on the west side of the roadway and east of the west team track; that the rear end of his wagon was about 15 feet north of 63rd street; that he “heard the truck coming,” just as he was letting down the tail gate, but did not see the truck before he was struck; and that he “just simply stepped out to. go alongside the wagon. ’ ’ McLannon, plaintiff’s other witness, testified that at the time of the accident he was standing in, and looking out the doorway towards the west of, a freight car on said east track; that he saw defendant’s truck turn from 63rd street into the roadway; that he saw Hayes stand at the rear of his wagon, open the tail gate, and then move towards the west and around the rear of the wagon; that, hearing somebody “holler,” he jumped out of the car door and found Hayes lying on the ground “within a foot of his wagon,” and a “front wheel of the truck on his leg.”

Defendant’s witness, Kinnigike, testified in substance that he was sitting on the truck to the right of the driver, Kozloski; that the truck turned from 63rd street into the roadway and came to a stop, facing north; that the driver started the truck again in first speed; that it thereafter moved at a speed not to exceed three miles an hour; that the witness noticed that there were standing teams on each side of the roadway, that a standing team on the west side of the roadway was facing south, that plaintiff’s standing team and wagon were facing north on the east side of the roadway and that a man (Hayes) was at the rear of the wagon, facing north and “working on the tail gate”; that defendant’s truck is about eight feet "wide; that as the truck advanced the witness further noticed that the space between the truck and each standing-team was only “about two feet”; that as the truck was about to pass plaintiff’s wagon, “the man stepped out from behind the wagon”; and he (the witness) cried “look out,” so as to “give warning” to the man, and also to the driver of defendant’s truck who then was watching the team on the west side of the roadway; that before the truck was stopped, “the man was caught by the fender, . . . and fell, with his face north and his legs south”; that when he first stepped out from behind the wagon “we were about three feet from the wagon and behind it”; and that defendant’s truck, at the speed it then was going (three miles an hour), could be stopped in “about two feet.”

Kozloski, the driver of the truck, corroborated Kinnigike as to there being standing* teams on both sides of the roadway, between which he attempted to go. On direct examination he testified: “I seen that man behind the wagon fixing his tail gate, so I stopped; he left the tail gate at the same time I started the truck again; he jumped from the truck; I couldn’t see much, because the car was higher than the man; the helper (Kinnigike) told me to stop; so I stopped and backed up.” On cross-examination he testified: “I stopped the truck because I saw the man about 3 or 4 feet from me; I saw the standing wagon; I was figuring 1 could make it: the man was letting down the tail gate; . . . I don’t think I blew my horn, because the truck makes lots of noise. ’ ’

Defendant’s counsel here contend that the trial court erred in not granting defendant’s motions (made at the close of plaintiff’s evidence and at the close of all the evidence) for a directed verdict in its favor. They argue that it sufficiently appears from Hayes’ testimony that he. was guilty of such contributory negligence as bars a recovery by plaintiff as a matter of law. We cannot agree with the contention or argument. It is true that Hayes testified that while he was letting down the tail gate of his wagon he “heard the truck coming” and immediately without looking stepped to the west and then to the north to go alongside the wagon. Yet we are of the opinion, under all the facts and circumstances in evidence, that it was for the jury to say whether or not he was guilty of contributory negligence. We think he had a right to assume, in view of the then ample space in the driveway to the west of his standing wagon, that no truck or vehicle, coming from the south, would be driven (especially without sounding a horn) so close to'said wagon as to injure him while he was passing alongside of and close to it. And we do not think that the decisions in several street railway cases, cited by counsel, are in point. In those cases it appears in substance that the injured person, without looking, stepped or drove on to a railway track and into the path of an on-coming street car, with knowledge that such cars frequently traveled on said track.

And we think that there was ample evidence justifying the jury in finding that the driver of defendant’s truck was guilty of negligence which proximately caused the injuries to Hayes.

The judgment of the municipal court should be affirmed and it is so ordered.

Affirmed.

Keener and Scanlan, JJ., concur.


author: Mr. Justice Keener

text:
    Sara Patek, Complainant, v. Abraham H. Patek et al., Defendants. Abraham H. Patek, Cross Complainant, Appellee, v. Sara Patek, Cross Defendant, Appellant.
    Gen. No. 35,094.
    Opinion filed November 24, 1931.
    Krinsky, Levitan & Glassner, for appellant.
    Ludwig Loewenstein, for appellee.
   Mr. Justice Keener

delivered the opinion of the court.

Complainant, Sara Patek, filed her bill for an accounting against Abraham H. Patek, Chicago Title & Trust Company, as trustee, W. J. Newman and Eichard Barry. The defendant, Abraham H. Patek, filed an amended cross-bill against the cross defendant, Sarah Patek. Its essential averments are that in January, 1919, he came to live with Sara Patek and their two brothers; that he was of considerable assistance to his sister by his advice and counsel and that they were in the habit of confidence and harmony of interest in their mutual affairs and she frequently consulted him about her business affairs and troubles; that in February, 1920, he had considerable experience as a real estate broker, and she was possessed of a considerable sum of money and thereupon he, she, and their brother Jacob entered into an oral agreement to pool their capital and services, share and share alike, in buying and selling real estate; that she was to keep all accounts and books and handle all money, make all disbursements, sign all checks and documents necessary and take title to all property acquired in the joint enterprise; that Jacob was to superintend all construction, improvement and repairs; and that he was to maintain a downtown office, in touch with brokers and dealers, investigate and. secure bargains, procure loans, manage all property acquired, except the collection of rents, arrange terms of purchase, close all deals and attend to all legal matters incidental to said business; that operations were commenced which resulted in profit to the enterprise and thereupon after the death of Jacob he (the cross complainant) and she entered into an oral agreement whereby he should undertake Jacob’s duties in the enterprise and continue the enterprise and that they were to divide the profits equally between them; that from 1919 to 1925 the enterprise continued and by prudent investment and successful management of its profits by him she received a net income therefrom in the sum of $10,000; that she has collected all rents without accounting for same and that the present value of the property now standing in her name is $150,000; that he is justly entitled to a one-half interest in all the property standing in her name; that he has at all times acted in good faith and that he is ready to do equity, and prays that she be held and decreed a trustee for him of the real estate standing in her name as belonging to the joint enterprise and partnership; that a resulting trust in his favor be decreed in said premises, and that their respective interests be ascertained and settled. After issues joined the cause was referred to a master to take the testimony and report his conclusions of law and fact. The master filed his report, in which he found that the complainant was entitled to an accounting from the defendant, and that the defendant was also entitled to an accounting, which shall take into consideration the services performed by him for and on behalf of the complainant with all outlays of money in connection with the various transactions handled by him and recommended that the amended cross-bill be dismissed for want of equity and that a decree be entered as prayed for in the bill of complaint. Objections to the report filed by the defendant and cross complainant were ordered to stand as exceptions. There was a hearing on the exceptions, and on January 9, 1931, the chancellor entered the decree appealed from.

By the decree the chancellor found inter alia that the complainant and the defendant Abraham H. Patek are sister and brother; that Sara Patek and Abraham H. Patek together with their brother Jacob Patek, during the month of February, 1920, entered into an agreement of partnership to engage in the business of buying real estate improved with old dilapidated stove-heated buildings, rehabilitating, altering or remodeling the buildings, selling and dealing therein at a profit, with a view to ultimately acquiring and accumulating a number of pieces of such improved real estate to hold for the income to be derived therefrom; that the profits and income from the enterprise were to be shared equally between them; that Sara Patek was to invest her capital and to furnish her services in the collection of rents, act as treasurer and keep the accounts of the partnership; that Jacob Patek was to invest, his capital and furnish his services as a plumber and as general mechanic in the remodeling and rehabilitating of the buildings of the defendant; Abraham H. Patek was to furnish his services as an expert real estate operator to locate and buy real estate appropriate for the partnership purposes; consummate the transactions; plan and advise the'method of rehabilitation and alteration of the buildings; arrange for the refinancing of the real estate by mortgage or otherwise; find buyers for the property resold; negotiate the price and terms of purchase and of sale, and otherwise direct the general transactions of the enterprise; and it was agreed that the title to the real estate to be purchased by the partnership was to be taken in the name of Sarah Patek; one piece was to be taken in the name of Jacob Patek; that Jacob Patek died on April 21, 1921; Sarah Patek and Abraham H. Patek shortly after the death of Jacob Patek agreed to continue the partnership enterprise along the same lines with the understanding that the profits and the income were to be shared equally between them; that .in pursuance of the object of the partnership,. a large number of pieces of real estate were purchased over a period of about six years; a considerable amount of rehabilitation, altering and repair work was done on the various buildings, and a number of the pieces of real estate so purchased were sold, and the income from the real estate and the proceeds of the sales were from time to time invested in other like real. estate; that now the complainant holds title to numerous pieces of real estate, some of which were purchased with partnership funds; that in the course of the dealing between Sara Patek and Abraham H. Patek there was an interchange of money from time to time between them involving a great number of transactions'; that moneys were disbursed from time to time by each of the parties for the benefit of the other as well as for the partnership enterprise, the number, nature and amounts of which transactions can only be ascertained by an accounting; and that said partnership was dissolved by act of the parties on December 31,1926; and the chancellor decreed that the enterprise entered into between Sara Patek and Abraham H. Patek and Jacob Patek, and after the death of Jacob Patek continued by Sara Patek and Abraham H. Patek was a partnership; that Sara Patek and Abraham H. Patek are each entitled to one-half of the profits realized from all the dealings and transactions of said partnership, including the purchase, sale and rehabilitating of real estate, and the rents, issues and profits thereof; that the real estate owned by Sarah Patek at the date of the filing of her bill as to such part thereof, if any, as may be determined by the court to have been purchased with such partnership profits or a part thereof was declared to be impressed with an equitable lien to the extent of the partnership profits invested therein; that an accounting of all the partnership dealings and transactions be taken under the direction of the court, and the cause was referred to a master in chancery to take a full and complete account of all the business transactions had between Sara Patek and Abraham H. Patek from February 1, 1920, to ascertain and determine the original investment of investments in the partnership enterprise, each piece or parcel of property purchased, the purchase price and terms of purchase, each piece or parcel of real estate sold, the sale price and terms thereof, the rents, issues and profits of such real estate, the cost of improvements, rehabilitation and - expenses of the real estate and of the partnership, the profit derived from the partnership enterprise, and the manner of rein-’ vesting or disposition made of such profits, and should it be ascertained that any such partnership profit has been used to purchase investments, the description, location and nature of such investment; the amount of interest, if any, to be credited or charged on the contributions to partnership capital or advancements and the expenses of office rent, automobile or otherwise, paid or disbursed by either of the parties for the use of the partnership; and to report the said accounting with his recommendations and with his conclusions of fact and law thereon to the court.

The question for determination is whether or not the evidence shows the existence of a partnership relation between Sara Patek and Abraham H. Patek. Sara Patek denied that a partnership relation existed between her and her brother; the burden'was, therefore, upon Abraham to prove its existence, by clear proof (30 Cyc. 413) and satisfactory evidence (Walker v. Matthews, 58 Ill. 196), and as between the parties, the question of partnership is one of intention to be proved by express agreement or inferred by the acts or conduct of the parties. (Grinton v. Strong, 148 Ill. 587, 596; National Surety Co. v. Townsend Brick & Contracting Co., 176 Ill. 156, 161; Reed v. Engel, 237 Ill 628, 631, and Goacher v. Bates, 280 Ill. 372, 376.) A partnership can only exist in pursuance of an express or implied agreement to which the minds of the parties have assented. (Phillips v. Phillips, 49 Ill. 437.) There were no written articles of copartnership. To establish the partnership relation Abraham H. Patek testified in substance that in 1918 he commenced to and did live with his sister Sara until September or October of 1926. About the time he went to live with his sister he became interested in the purchase of real estate with one Bichard T. Barry, with whom he had been associated in the painting business, buying old buildings, remodeling and rehabilitating them and selling them, at a profit. In the fall of 1919 he had a conversation with Sara, in which he requested her consent to place the title to the property so purchased by himself and Barry in her name, to which she consented. During this conversation he explained that he and Barry were buying old buildings, which they remodeled and sold at a profit. That in February, 1920, Sara Patek said to Abraham that Jacob, their brother, had suggested to her that he could do the work as well as Barry and that it might as well be kept in the family and that she agreed with Jacob that they ought to make this a sort of family proposition. Shortly after, Abraham, Sara and Jacob Patek had a conference at which Abraham said that he had agreed to separate from Barry and that Sara, Jacob and he would go into the business of buying old properties, fixing them up and selling them; that Sara would carry the title to all properties purchased, and they discussed the question of profits, whether Jacob would be entitled to pay for his labor, or Sara to interest on her investments and Abraham to any compensation for office expenses and commissions in making any deal; that he said those questions would only arise in case of a dissolution; thereupon Sara stated, “We can all depend upon treating each other fairly and honorably”; we will go ahead, join all our funds and efforts to accumulate property and leave the question of credits and debits to be decided if and when we want to separate; in the meantime we are interested equally three ways in the profits. The conference lasted from supper until about midnight and ended with a statement by each of the parties that they were to join their money and efforts in a real estate venture. He further testified that at this conference he told Sara that a real estate operator did not usually carry title himself; that the title would be carried in her name; that he would get a broker’s commission and not be known as the owner. He further testified that at one of these conferences Sara stated she had bonds valued at about $7,000 which she would sell and put into the business; that Jacob, who was a plumber and steamfitter, was to put in his money, amounting to about $2,000, and to hire the men and do most of the work. He further testified that in April of 1921, Jacob died and within a month thereafter he and Sara had a conversation in which it was said that he and Sara would have to cover the entire work, and agreed that the profit would be divided equally between them.

He further testified that after the conference at which it was agreed that they were to enter into the enterprise they purchased four pieces of property on Paulina street; two of those pieces were the property that Barry and he and Abraham had under contract before Barry and the witness separated; and that all properties that were purchased by his sister after March, 1920, were negotiated by him. Titles were taken in her name and she signed all the mortgages. He further testified that at the time he left his sister’s home (sometime in September or October of 1926) he told her he was entitled to one-half of the profits under the arrangement, and that instead of owing her $6,000 an accounting would show that she owed him between $30,000 and $40,000 after giving her credit for everything he had gotten from her; that within two weeks after he left he received a telephone call from Enoch Price, her attorney; in response to the telephone call he called at the office of Price and was informed that his sister complained that he had not treated her fairly, which charge he. denied, but made no such claim as related by him in his testimony before the master. After this conversation he returned to his own law office-and wrote a letter; this letter addressed to Enoch J. ÍPrice was introduced in evidence by the cross defendant.

Charles C. Featherly testified that one Sunday in the spring of 1920 or 1921 he was asked to come to the Patek home regarding some work on Paulina street and there met Sara, Abraham and Jacob, and in the presence of Sara, Abraham outlined what work they wanted the witness to do on the Paulina street property, and at this meeting Jacob said, “We have formed a combination and I am going to stay on the job. Abe will take care of the business end of it and my sister Sara is quitting her dressmaking business and is going to help take care of the finances and keep house for us.” Jacob also said the three of them were going to pool profits on old properties by remodeling and selling and making a profit out of them. Sara said it was three-way combination in the family.

James E. Barry testified that in 1921 or 1922 he met Sara Patek at Madison street and Western avenue and she said: “If this combination, Abe, Jake and I keep together, I won’t have to bother about this school.” On cross-examination he testified that Sara said there was a combination of three of them working together to get some money on old buildings, getting old buildings and fixing them up.

We have called attention to the more salient facts in the testimony upon which Abraham H. Patek relies to establish the fact that a partnership relation existed. Whether the agreement testified to by Abraham H. Patek constitutes a partnership cannot be determined by any arbitrary test. It depends upon the intention of the parties, and this intention must be gathered from the evidence as to what the terms of the agreement were and the conduct of the parties in reference to the matter. In reply to this contention of the cross complainant, Sara Patek testified that from 1911 to 1925 she was engaged in teaching dressmaking, designing and pattern making; that the first time she bought any real estate was in March, 1920; that she learned of it through Abraham who said it could be bought very cheap; that she purchased it and that Abraham took care of the details.; the property consisted of four houses on Paulina street for which she paid $11,700 in cash. She then related the purchase of other properties and that Abraham took care of the negotiations and that in all of the transactions he was her agent. She also testified directly and positively that she had no such conversations as were related by Abraham and specifically denied any such conversations ever took place, and she vigorously denied that she made the statements or admissions ascribed to her by the witnesses Peatherly and Barry.

Between the stories told by the cross complainant and the cross defendant there is irreconcilable conflict. The burden was upon the cross complainant to prove a partnership existed; it was not upon the cross defendant to prove it did not exist, and so far as the proof rests upon the respective but contradictory statements, it is sufficient to say that cross complainant did not sustain the burden. It is true there are more or less supporting and corroborating circumstances shown in the evidence by both parties upon certain features of the case. By the cross complainant’s own testimony it appears that no property was bought or sold without cross defendant’s consent as to price or.details, and that no deal was ever closed that she did not want to close; that all rents collected from any of the properties, except for the "first month or two, were collected by her, and any rents collected by him were, as he claims, accounted for by him to her; that he never asked her for any division of the rents or any specific portion of the rents; that he took care of the preparation of her income tax reports, in which nothing was said about the fact that any person, other than the cross defendant, was interested in the income from the properties; she always paid the income tax and he knew that, if it was claimed that someone else had a net interest in the property, her income tax might be reduced thereby. His own testimony goes far to defeat his claim. It appears from the record that she filed her bill in the instant case on September 19, 1928, about two years after he left her home, and it appears from the evidence that shortly after he left her home he wrote a four-page letter, addressed to her attorney, Enoch J. Price, in which he said in part:

About six years ago my sister and my brother Jake, who was then living, and myself agreed in a general way that we would go in the real estate business. Sister to furnish capital and brother and I to do our respective shares. There was no understanding as to how the proceeds were to be divided, simply a general understanding that everybody would be fair in the matter. I was to find the bargains and obtain loans and look after all the details. Proceeding along these lines we accumulated a number of pieces of property, I looking after all the details and handling of the money and drawing on my sister whenever I wanted to, rendering no account, until quite a few pieces were accumulated, when I turned the collection of rents over to my sister. We continued on without any understanding until about a little over a year ago when I got an idea how my sister figured in her own mind what the status of all the property ought to. be and was. You stated to me yesterday that you thought we could come to some adjustment. You apparently are forgetting that adjustments and negotiations can be had between men but as far as a woman is concerned the thing is impossible. It is my belief that a woman is incapable of understanding equity, when her maternal instincts are aroused she will willingly go to any sacrifice and consider that she is not doing even then her full duty, but when you consider them in-the light of a partnership, their idea is that what is yours belongs to them of course, but what is theirs is naturally their own.

It is important to state here that the cross complainant graduated from a law school in 1919 and is a practicing attorney. It is fair to assume that a man versed in the law would present his claim, if any he has, in the strongest light possible. Nowhere in his conversation with Price within two weeks after he left his sister’s home, nor in the letter written to Price did he claim to be a partner of his sister, his only claim being that he was entitled to payment for the very valuable services he claimed to have rendered his sister in helping her to accumulate what he termed an estate. If these statements in his letter are to be accepted as the truth, it is very clear that the minds of the parties never assented to the creation of a copartnership. (Phillips v. Phillips, 49 Ill. 437.)

We think from the evidence the conduct of the cross complainant was inconsistent with his present claim of partnership, and an analysis of the testimony leads us to the conclusion that a partnership was not intended by the parties. A chancellor, as well as a court of review, should be slow in disturbing the conclusions upon the facts of a master, unless it can be said that his conclusions are clearly contrary to the probative force of the evidence. (Gruenenfelder Lumber Co. v. Golden, 260 Ill. App. 313.)

The decree of the circuit court will be reversed and the cause remanded with directions to dismiss the cross-bill for want of equity and to enter a decree, that the complainant is entitled to an accounting from the defendant and that the defendant is also entitled to an accounting which shall take into consideration the services performed by him for and on behalf of the complainant with .all outlays of money in connection with the various transactions handled by him, as recommended by the master and that said cause be referred to the master to state an account, where the cross complainant may, if he can, show to what extent the cross defendant is indebted to him.

Reversed and remanded with directions.

Gridley, P. J., and Scanlan, J., concur.


text:
    In re Estate of Eugenia Crimp Bridge, Deceased. In re Claim of Walter Crimp et al., Appellants, v. First Union Trust and Savings Bank, Appellee.
    Gen. No. 35,153.

      Opinion filed November 24, 1931.
    Rehearing denied December 7, 1931.
    Ivor Jeffreys, for appellants.
    Winston, Strawn & Shaw, for appellee; James H. Cartwright and Thomas A. Reynolds, of counsel.
   Mr. Justice Keener

delivered the opinion of the court.

On December 3, 1929, appellants Walter E. Crimp, Alfred A. Crimp and Bessie Crimp Harvey filed a claim in the probate court of Cook county against the estate of Eugenia Crimp Bridge, deceased, for money collected by the deceased as trustee for appellants under an agreement dated December 29, 1893, made by the testatrix in her own right and as executrix of the estate of William. Gr. Crimp, father of appellants, and Ezekiel Smith and Joseph Eastman, and alleged that all knowledge of the trust agreement and of the moneys paid thereunder were fraudulently withheld and concealed from them and each of them by the testatrix, and no knowledge of the contract or of the moneys paid thereunder ever came to their knowledge, or any of them, until after the death of the testatrix. The testatrix died January 20, 1929. The claim was allowed in the probate court for $57,473.53; an appeal was taken to the circuit court of Cook county, where the cause was tried de novo without a jury, resulting in a finding in favor of appellants and assessing the damages at $31,516.74. Judgment was entered on the finding, from which judgment an appeal was taken by appellants to this court, appellants contending that the circuit court erred in not allowing the claim for the full amount claimed by them. Appellee has assigned cross errors.

• The material facts are that on November 14, 1893, William Gf. Crimp died testate in Chicago, leaving a will dated November 10, 1893. He left him surviving Eugenia Crimp, his widow (who afterwards married John M. Bridge), the appellants aged 16, 12 and 10 years, respectively, his children by a former marriage, and three children by his marriage with Eugenia Crimp, one aged three months and the other two respectively, two and three years old. By his will he left all of his estate to his widow. His estate consisted of claims against Patrick J. Sexton and Ezekiel Smith, $5,000 insurance, his home on Champlain avenue and 12 vacant lots, upon which testatrix- afterwards built flat buildings. For many years prior to his death he was a member of the firm of Smith, Crimp & Eastman, contracting plasterers, who operated extensively not only in Chicago but throughout the United States. In the spring of 1894, this firm dissolved. Smith retired to a farm in Missouri. Eastman went to California and died there and Crimp became associated with the McCormick Construction Company, who had a contract for the excavation of section 14 of the Chicago Sanitary District Canal. Shortly thereafter Crimp became ill and the McCormick Construction Company’s affairs being involved Crimp sent for Ezekiel Smith and requested him to look after his interests in the McCormick Construction Company. Upon his arrival Eugenia Crimp informed him that her husband had made a will in which he left everything to her so that the McCormick Construction Company matter could be handled and' she was to provide for the appellants. She also informed him that she would provide for the appellants and that her husband depended upon her honesty to see that the-appellants got what was right. Smith investigated the affairs of Crimp and as a result, after the death of Crimp, caused a bill to be filed in the United States District Court entitled Eugenia Crimp v. McCormick Construction Company and R. P. McCormick, in which proceeding* a receiver was appointed for the McCormick Construction Company. January 5, 189-4, the assets of the McCormick Construction Company were offered for sale at public auction, and were purchased by Smith and Eastman, the two former partners of Crimp; $8,000 was paid for the physical plant and $33,000 for the contract with the sanitary district, making a total of $41,000. December 29, 1893, prior to this sale,' Smith and Eastman entered into a contract (which is the basis for the claim in the instant case) with Eugenia Crimp in her own right and as executrix of the estate of William Gr. Crimp, deceased, under which Eugenia -Crimp sold and assigned all her right, title and interest and all of her stock, securities and rights, claims and demands against .R. P. McCormick and the McCormick Construction Company to Smith and Eastman. In this contract- Smith and Eastman agreed to bid at the sale of the assets of McCormick Construction Company, and if successful, to carry out the contract with the sanitary district and to pay Eugenia Crimp as trustee $10,000, to be evidenced by a promissory note drawing* interest at six-per cent per annum from the beginning of the work and two-ninths of the net profits-, the two-ninths not to exceed $28,000 and not to be less than $10,000. The note payable to Eugenia Crimp, as trustee, was given and the semiannual interest was collected in January and July of each year up until January, 1901, when the final instalment of interest and principal was paid. Eugenia Crimp agreed to receive the interest from the note of $10,000 and apply it to the maintenance, education and necessary expense of the appellants, and when the principal was paid to safely keep and invest it in safe interest-bearing securities. A like provision applied to the two-ninths’ profit when received. All moneys received under the contract were to be held by her in trust for the appellants and paid to them when they became of legal age and released all claims against their father’s estate. The provision in the contract in this respect being as follows:

“It is understood and agreed by the parties hereto that the provision herein made is to be the whole share of said three oldest children and they are never to make any other claim on second party for anything more on account of their father’s estate.” January 15, 1894, Eastman assigned to Patrick J. Sexton all of his right and interest in this agreement and all his interest in the assets purchased at the receiver’s sale, and January 17, 1894, Sexton and Smith entered into a copartnership agreement for the purpose of carrying-out the contract with the sanitary district. In this co-partnership agreement it was agreed that the interest purchased of Eugenia Crimp was to be managed by Sexton and as much realized as possible, the proceeds turned into the general fund and the interest or advances of $10,000 secured to Eugenia Crimp, as trustee, to be paid as other expenses; that when all the moneys were collected by Sexton and all debts paid the remaining- money was to be divided 22 2/9 to the appellants and 38 8/9 to Smith and Sexton, respectively; when appellants had been paid a total of $28,000, including the $10,000 guaranteed, their interest should cease, and if 22 2/9 profit did not amount to the $10,000 guaranteed then Sexton and Smith should contribute equally a sufficient sum to make the Crimp share $10,000. January 29, 1901, Smith and Sexton entered into an agreement in which they recited that the work of excavating section 14 of the sanitary district had been completed and that they were settling their accounts, and Sexton undertook to save Smith harmless from all loss, damage or expense in any way arising out of the agreement of December 29,1893. On July 6, 1904, Eugenia Crimp Bridge filed a claim in the probate court of Cook county against Sexton’s estate, in which she set forth the trust relation and claimed the money as her individual property, seeking to collect the two-ninths of the profits arising under the contract of December 29,1893. In her claim she admitted receiving the $10,000 and claimed the difference between $10,000 and $28,000, $18,000. December 30, 1904, her claim was allowed for $12,500 and paid that day.

Eugenia Crimp died testate leaving an estate in excess of $161,000. Her will contained the following provision :

“Third: I give and bequeath to my step-children, Walter Crimp, Alfred Crimp and Bessie Crimp Harvey, each, the sum of $2,000 provided that they shall make no further or other claims against my estate. In making this provision for my said step-children I have taken into consideration the fact that I have heretofore expended considerable sums of money for their education, clothing, care and living expenses and have provided a home for them.” (Italics ours.) The remainder of her estate after bequeathing $500 to each of her grandchildren was to be left in trust for her own children. After her death no books of account kept by her were found; neither was the original contract nor any copy of the contract of December 29,1893, discovered among her papers. The appellants had no knowledge of the trust agreement of December 29,1893, or of the moneys paid thereunder and that as the beneficiaries thereunder they had any claim against Eugenia Crimp Bridge ás trustee, until after her death. We shall first dispose of the cross errors assigned by the appellee. Its main contention is that the rights of the appellants are barred by laches. It appears from the record that Walter, the oldest son of William GK Crimp, was 17 years of age when his father died; that the following summer he entered the employ of Zander & Beum Company as a plasterer’s apprentice and has remained with that firm for more than 36 years and is now in its employ as superintendent; that he was present during the latter part of January or the first part of February, 1929,' when Henry H. Benjamin read testatrix’ will in which the appellants were bequeathed $2,000 each, provided they should malee no further or other claim against her estate; that thereafter he made a search to discover what possible claims they might have against her estate; that old neighbors and friends were interviewed; searches were made in the recorder’s office at Joliet, the county in which section 14 of the Sanitary District Canal was located; in the recorder’s office of Cook county and in the clerk’s office of the county, federal and circuit courts at Chicago, and as a result he discovered in the files of the Continental Illinois Bank & Trust Company the agreement of December 29, 1893.

Eugenia Crimp Bridge kept no books of' account. After her death no books of account of Eugenia Crimp Bridge were found, nor was the original trust agreement or a copy of the agreement of December 29, 1893, discovered. Ezekiel Smith, the only surviving contracting party to this agreement, testified that he never told appellants anything about the trust agreement. Samuel T. Jacobs, who was employed by Patrick J. Sexton from 1893 until his death in 1903, and who knew Smith, Crimp, Eastman and Eugenia Crimp, and saw the agreement a day or two after its execution, testified that the agreement had been in his custody from that time until the death of Mr. Sexton. That he saw Sexton pay Eugenia Crimp money every six months; that the first time was six months after the $10,000 note was given, and that Eugenia Crimp received the $10,000 in January of 1901, and the note was canceled. Cora C. Doolittle testified she was an intimate friend of Bessie, one of the appellants, that she was frequently at her home and had never at any time heard of the agreement. George Chandler lived two doors south of and visited Eugenia Crimp frequently; they were neighbors for 27 years; that he knew her since 1894 and talked with her about business matters in a minor way; that she never discussed the trust agreement of December 29, 1893. Mary C. Spencer, the oldest daughter of Eugenia Crimp, testified that she heard of the existence of the agreement but never talked to the appellants about it. O. S. Gaither, who drew William G. Crimp’s will, testified that he was a close personal friend of Eugenia Crimp and upon the death of Crimp he became her business adviser and continued in that capacity until about six or seven years before her death; that she never told him that the $10,000 was held by her in her trust capacity for the appellants and that he knew nothing of the trust agreement; that he knew Eugenia Crimp was engaged in a great deal of litigation and that he had suggested a law firm to her which firm filed her claim against the estate of Patrick J. Sexton for $18,000. It further appears from the record that Walter arrived at legal age on December 14, 1897, Alfred on January 1, 1902, and Bessie on February 20, 1901, and that on-November 5, 1901, testatrix filed a bill in the circuit court of Cook county against Smith, Sexton and Eastman for an accounting under the trust agreement of December 29, 1893, in which she alleged that since the said contract was made, two of the minor children of her deceased husband, mentioned therein, have become of age and have released to her all their rights of every description, arising out of the contract hereinbefore referred to, and that the other child therein referred to (meaning Alfred A. Crimp) will become of age on the 5th day of January next, and will then release to your oratrix all interest in said contract of whatever description, and that an amended and supplemental bill was filed after Alfred had become of legal age, alleging that he had also released to her his interest of the trust. On the books of the law firm who drew the bill was a charge against Eugenia Crimp Bridge, as trustee, for drafting a release to her from Walter E. Crimp. It further appears that at the opening of the testatrix’ safety deposit box, Walter Crimp and Bessie Harvey admitted having a conversation with Henry H. Benjamin in which it was claimed by Benjamin that Walter asked him (Benjamin) to look for a release which they had signed when they became 21 years old. Walter denied the conversation and testified that his sister Bessie asked Benjamin to see if he could find a paper that she had signed when she was 18 years of age. It also appears that on April 2, 1929, Alfred A. Crimp wrote to Benjamin asking him if he had located a release which he signed in 1902. No releases executed by the appellants were, however, introduced in evidence.

It was upon this record that the court found the appellants had not been guilty of laches. In this view we concur. Í While it is true that laches and neglect are always discountenanced, it is also true that the doctrine of laches was created to promote the natural principle of justice and not to protect fraud and iniquity. The facts with reference to the trust agreement of December 29, 1893, did not come to the attention of the appellants until after-the death of Eugenia Crimp Bridget There can be no laches where there is no knowledge, and mere delay will not bar relief where the injured party was ignorant of the fraud and filed his claim. within a reasonable time after acquiring knowledge of it. (Duncan v. Dazey, 318 Ill. 500, 525.) The duty to commence proceedings can arise only upon discovery of the fraud, j (Bishop v. Thompson, 196 Ill. 206, 209.) Appellee’s counsel contend the burden was on appellants to prove want of knowledge of the trust, and that they must fail in this action because they had not proven that fact by a preponderance of the evidence. In the instant case the appellants were attempting to prove a negative proposition, i. e., that they did not have knowledge. There is no evidence that any of the appellants had any knowledge concerning the trust agreement prior to November, 1929, and there is no evidence of the payment of any money to the appellants by the testatrix. In establishing a negative the law is satisfied with a less quantity of proof; evidence which renders the existence of the negative probable is sufficient, in the absence of proof to the contrary. (Prentice v. Crane, 234 Ill. 302, and cases cited there.) Appellants were not required to make plenary proof of a negative averment. (In re Estate of Dedmore, 257 Ill. App. 519, 522.) Under the circumstances in the instant case the findings of .the trial court will not be set aside unless it appears that they are manifestly against the weight of - the evidence, and this we are utiable to say. 'On the contrary, the findings of the court that the appellants were not guilty of laches appear to be sustained by the weight of the evidence.

It is also contended by appellee that Walter E. Crimp was an incompetent witness. We do not think so. He testified that he was present at the reading of the will after the death of the testatrix and what he did thereafter as before recited. No questions were put to him in any way respecting the agreement on direct examination. On cross-examination, however, he was asked when after the death of Mrs. Bridge did he first see a copy of the agreement of December 29, 1893, and he answered, “About the middle of November, 1929.” The first exception of ch. 51, If 2, Cahill’s Rev. St. 1931, page 1428, permitted him to testify to facts occurring after the death of the testatrix. A similar situation arose in Vigus v. O’Bannon, 118 Ill. 334. There the decedent was given a policy of life insurance for collection. He collected the face value of it, but paid the beneficiary only $2,000, stating the insurance company refused to pay the face value of $5,000 and that he had compromised the claim for $2,000. O’Bannon died in 1883. After his death the claimant learned that O’Bannon had collected $5,000 and a claim was filed against his estate. The court on page 349 said:

“The testimony tends to show, that, in November, 1883, after the death of R. W. O’Bannon, appellant went to Chicago to testify, in some suit, to which A. W. Edwards was a party; that he was there told by Terpenny, that the receipt - on the back of the policy was for $5000, and seemed to be greatly surprised at the information; that he had never before talked with Terpenny on the subject; that he never saw the policy, on which the receipt was indorsed,' after he gave it to O’Bannon, in January, 1875, until it was exhibited to him in Chicago in November, 1883, etc. Such testimony had a tendency to show, that appellant had no notice of the cause of action, until after the death of O’Bannon. "When appellant offered himself as a witness upon this subject, the circuit court refused to allow him to testify, holding his evidence to be incompetent, under section 2 of chapter 51 of the Revised Statutes, entitled ‘Evidence and Depositions.’ Under the first exception to section 2, as set out in the statute, appellant should have been allowed to state such facts, having reference to the date of his receiving the notice in question,' as occurred after the death of E. W. O’Baiinon. ”

It is next claimed the court erred in limiting the effect of the bill filed by the testatrix in the circuit court November 5, 1901, entitled Eugenia Crimp v. Smith et al., to showing the reasonableness of certain charges for legal services, and in excluding the amended and supplemental bill; the answer of Joseph Eastman and the demurrers of Smith and Sexton. The purpose of this evidence was to get before the court the statement of the testatrix that the appellants had released to her all their rights of every description arising out of the trust agreement, and appellee argues .that these files were matters of record which were open to appellants and that the doctrine of constructive notice was applicable and cite the case of Oehmich v. Hedstrom, 251 Ill. 481. We think the case is not applicable here, being clearly distinguishable on the facts, and what was said there is not in point under the facts in the instant case, but that the language of Mr. Justice Cartwright in Howard v. Illinois Trust & Savings Bank, 189 Ill. 568, 575, that “The records.of courts operate as constructive notice to parties under certain conditions, but they are not kept for the purpose of disseminating news” is in point. In the instant case the appellants were not parties to the cause entitled Eugenia Crimp v. Smith et al., and there is no evidence that they had any actual knowledge of the filing of the bill by the testatrix.

. We now proceed to consider the errors assigned by the appellants. It is claimed the court erred in disallowing the interest collected by the testatrix on the $10,000 note. Samuel T. Jacobs testified the interest was paid semiannually by check; that the testatrix called at Sexton’s office every six months; that the first time was six months after the note was given; that the first payment of interest was in 1894. Ezekiel Smith testified that the interest at 6 per cent per annum was fully paid up to the final payment of the note in January, 1901. The testatrix in her claim filed in the Sexton estate admitted the receipt of the principal of $10,000. It is reasonable to assume that had the interest not been paid she would have alleged its nonpayment. There was no evidence on behalf of appellee that the interest had not been collected. This interest calculated from January, 1894, to January, 1901, aggregates $4,200 and should have been allowed appellants.

Appellants next contend the court erred in allowing appellee a credit of $300 claimed to have been paid to Flower, Smith & Musgrave, and $468.50 to Marshall & Babadow, attorneys. In the trial court it was claimed by appellee that these sums were paid for legal services and costs in endeavoring to collect the $10,000 note. There was no evidence tending to show what services, if any, were rendered. The only evidence in the record in support of this claim is the ledger account of Flower, 'Smith & Musgrave with Eugenia Crimp, trustee, and a receipt of that firm, dated January 26, 1901, that they (Flower, Smith & Musgrave) received of the testatrix $300 in full of all charges of counsel and services in her matters, and $468.50 in full of bill of Marshall & Babadow for costs and services-in her suit against Smith and Eastman, which documents were received in evidence over the objections of appellants. There is no evidence that Marshall & Babadow brought suit on the $10,000 note or that they rendered any services in connection with the note. Nor is there any evidence that the $300 for services rendered by Flower, Smith & Musgrave were in connection with the noté. It did appear from the evidence offered by appellee that the testatrix had a claim against Smith, Eastman & Sexton arising out of a matter wholly distinct from any matter involved in the instant case. These credits should not have been allowed.

It is also contended the court erred in allowing appellee a credit of $2,023.50 claimed to have beeii paid Flower, Smith & Musgrave, and $2,000 claimed to have been paid to J. B. Langworthy for legal services and court costs. These items must alsovbe disallowed. The only evidence regarding the $2,023.50 appears from the ledger sheet of Flower, Smith & Musgrave. No evidence of the services performed, nor their reasonableness appears from this record, and it did not appear that the party making the entries in the ledger had any pérsonal knowledge of their correctness. The $2,000 claimed to have been paid to J. B. Langworthy is based on two letters written by Musgrave, Vroman & Lee to Langworthy, dated November 30, 1904, and December 12, 1904. It appears that the letter of November 30, 1904, has to do with the contract relating to work done on the World’s Columbian Exposition. The letter of December 12,1904, did involve the matter in the instant case. However, it does not appear how much of the $2,000 is credited to the World’s Columbian Exposition mattér and how much to the collection of the claim filed by the testatrix against the Sexton estate for $18,000.

The trial court refused to allow interest on the $12,500 collected by the testatrix on December 30, 1904, from the Sexton estate. In our opinion the court erred in so refusing. Interest should have been allowed. (Chapter 74, 2, Cahill’s Revised Stats. 1931, p. 1728; Duncan v. Dazey, 318 Ill. 500, 526; Currier v. Kretzinger, 162 Ill. 511, 516; White v. Sherman, 168 Ill. 589; Ogden v. Larrabee, 57 Ill. 389.)

We have considered the argument of appellee’s counsel that the $4,200 collected as interest on the $10,000 note up to January, 1901, has been applied to the maintenance, education and necessary expenses of the appellants. It may be so, but there is no evidence in the record that it was so expended. She kept no records of any kind tending to show that fact, if it is a fact, and it does not appear for what period after the death of William Gr. Crimp the appellants lived with the testatrix. Every presumption is indulged against the trusteé who has personal dealings with a trust. (White v. Sherman, supra.) The rules of law applicable to trustees who misapply the trust estate without notice to the cestui que trust, often seem harsh and severe in their application to particular cases. They are intended, however, to impose a degree of punishment upon the trustee for the wrongful act. Such rules have their foundation upon the necessity that has been found by experience to exist to compel the performance of duties which the fiduciary relations impose. (Ogden v. Larrabee, supra.) It was her duty to account for every penny received and expended by her. From this record it clearly appears she did not do so. It must also be remembered that Walter E. Crimp commenced work as a plasterer in 1894 and that he has since continuously worked at that trade.

Our conclusions are that the circuit court erred in entering the judgment appealed from and that appellants are entitled to recover of appellee, as executor of the last will of Eugenia Crimp Bridge, the sum of $58,945.19, said sum being made up as follows:

Principal of note.........................$10,000.00
Interest thereon from Jan. 15, 1901 to Nov. 24,1931 at 5 per cent per annum, 30 yeg.rs, 10 months and 10 days.................. 15,430.13
Interest collected upon the $10,000 note from 1894 to 1901........................... 4,200.00
Amount collected of Sexton estate on Dec. 30, 1904 .................................. 12,500.00
Interest thereon at 5 per cent per annum from Dec. 30, 1904 to Nov. 24, 1931, 26 years, 10 months and 26 days............ 16,815.06
Total................$58,945.19

Accordingly the judgment of the circuit court is reversed and judgment will be entered here in favor of Walter E. Crimp, Alfred A. Crimp, Bessie Crimp Harvey, and against the First Union Trust and Savings Bank, executor of the last will of Eugenia Crimp Bridge, deceased, to be paid in due course of administration, in the sum of $58,945.19, together with costs in this court and the circuit court.

Reversed and judgment here for $58,945.19.

G-ridley, P. J., and Scanlan, J., concur.


text:
    The People of the State of Illinois, Appellee, v. Frank G. Heilman Company et al. Appeal of Central West Casualty Company, Appellant.
    Gen. No. 35,162.

      Opinion filed November 24, 1931.
    Andrew J. Farrell, for appellant; Albion M. Griffin, of counsel.
    Arthur L. Israel, for appellee; Milton Klorfine, of counsel.
   Mr. Justice Keener

delivered the opinion of the court.

This is an action in assumpsit brought by plaintiff against Frank Gf. Heilman Company, a corporation, as principal, and the Central West Casualty Company as surety, on an indemnity insurance contract commonly called a Commission Merchant’s Bond. There was a trial by the court, a finding of the issues against the defendants, damages assessed at $5,663.09, judgment to be satisfied upon the payment of $5,000 and a judgment on the finding. To reverse this judgment the defendant, Central West Casualty Company, appeals.

The statement of claim sets forth in substance that on July 1, 1929, the Frank Gr. Heilman Company was engaged in the business of receiving farm produce for sale on commission at 945 Fulton street, Chicago, Illinois, and that Central West Casualty Company was engaged in the business of acting as surety on bonds and that the defendants executed and delivered to plaintiff a certain bond or undertaking in and by which said bond the defendants jointly and severally acknowledged themselves to be held and firmly bound unto the plaintiff in the sum of $5,000 to be paid to the plaintiff, which said writing obligatory was subject to a certain condition thereon written to the effect that if the Frank Gr. Heilman Company, which had applied or at the date of said bond was about to apply to the Director of Agriculture of the State of Illinois for a license to engage in the business of receiving farm produce for sale on commission until the first day of July, 1930, at 945 Fulton street, Chicago, Illinois, pursuant to the provisions of “An Act to regulate the consignment and sale on commission of farm produce,” Cahill’s St. eh. 5, U 24 et seq., approved June 28, 1919, in force July 1, 1919, as amended, and who has procured to be furnished this bond in accordance with the provisions of said act should honestly account for and handle all the produce received and should make payment to the consignors thereof of all moneys or things of value received for goods consigned to said principal for sale and should indemnify and keep indemnified said consignors from and against all fraudulent acts of said principal in the sale or handling of the goods of said consignors and should keep, perform and abide by all the terms, conditions and provisions of said act and all lawful rules and regulations of the Department of Agriculture of the State of Illinois made in pursuance thereof, then the said obligation was to be void, otherwise to remain in full force and effect; thereupon the State of Illinois by the Director of Agriculture issued a license ,to the Frank Gr. Heilman Company to engage in the business of receiving farm produce for sale on commission, and the said Frank G-. Heilman Company proceeded to engage in such business; that there was delivered to the said Frank G. Heilman Company at 945 Fulton street, Chicago, Illinois, certain produce for sale on commission of the kind and value by the consignors and at the times as follows: (here naming the consignors, the date and the amount of their shipments) ; that the said Frank G. Heilman Company did not honestly account for and handle nor make payment for the produce delivered, nor did it indemnify the said consignors against its fraudulent acts in the handling of the goods of said consignors.

There is no conflict concerning the facts, the defendant admitting that all of the consignors, with the exception of two, have proven delivery and have not been paid the amount of their shipments, and as to those two, after an examination of the record, we are of the opinion the goods were received and were sold and the money had not been paid to the consignors..

The statute involved in this case is known as ch. 5, secs. 3 and 4 (Cahill’s Revised Stats. 1931, page 82, pars. 26 and 27), being an “Act to regulate the consignment and sale on commission of farm produce, and to repeal an Act therein named, ’ ’ and provides as follows:

“Sec. 3. Before any such license shall be issued every applicant shall execute and deliver to the Director of Agriculture an indemnity bond for five thousand ($5,000.00) dollars and with sureties satisfactory to the said director. All bonds to be of a standard form as to terms and conditions, approved by the director, and to secure an honest accounting and handling of produce received and for the payment to the consignor of all moneys or things of value received for goods consigned to such licensee for sale and to secure consignor against all fraudulent acts of said licensee in the sale or the handling of the goods of consignor. And the director may bring an action in any court of competent jurisdiction in the county in which is situated the place of business of the licensee to recover payment for goods sold on commission and not paid to consignor, or not honestly accounted for, and for damages sustained by consignors by reason of such fraudulent acts and wrongful handling and if such licensee has become liable to more than one consignor, and the amount of the bond is insufficient to pay the entire liability, the consignors shall be compensated in proportion to their several claims, the said sums when collected to be promptly paid over to the parties entitled thereto.

“Sec. 4.....

“When a consignor of farm produce fails to obtain an honest accounting in any transaction he shall within sixty (60) days after the shipment of the goods make a demand upon the consignee for either an honest accounting or payment for goods shipped. Ten days after making this demand, if an honest accounting or payment has not been received by the consignor, he shall file with the director a copy of this demand together with an affidavit setting forth the nature and amount of the goods consigned, the date of the consignment, and the amount he believes to be due and owing him, together with bills of lading and delivery receipts showing the goods were shipped to and received by the consignee. The director shall attempt to secure an explanation or adjustment; failing this, within seven days after receipt of such complaint from consignor, he shall cause a copy thereof, together with a notice of a time and place for a hearing on such complaint, to be served personally or by mail upon such commission merchant. Such service shall be made at least seven days before the hearing, which shall be held in the city, village or township in which is situated the place of business of the licensee. At the time and place appointed for such hearing, the director or his assistants shall hear the parties to such complaint, shall have power to administer an oath, and shall enter in the office of the director at Springfield, a decision either dismissing such complaint or specifying the facts which he deems established on such hearing, and in case such facts are established as cause him to revoke such license, he shall bring an action on the bond within sixty days of the filing of such decision. ’ ’

The defendant contends that the terms and conditions of section 4 of the act are conditions precedent and must be complied with and that the failure of the plaintiff and the consignors, on whose behalf the action was brought, to comply with the conditions enumerated in section 4 is a bar to recovery.

The bond form was prepared by the Department of Agriculture and contains the provision that the commission merchant “shall honestly account for and handle all the produce received, and shall make payment to the consignors thereof of all moneys or things of value received for goods consigned to said principal for sale, and shall indemnify and keep indemnified said consignors from and against all fraudulent acts of said principal in the sale or handling of the goods of said consignors, and shall keep, perform and abide by all the terms, conditions and provisions of said act, and all lawful rules and regulations of the Department of Agriculture of the State of Illinois made in pursuance thereof,” and was for the period beginning July 1, 1929, and ending June 30, 1930; the consignments involved in the instant case were between these dates. The evidence shows that seven of the consignors complied with section 4 of the act and that the other two had not complied therewith; there was no evidence in the record that the director of agriculture attempted to secure an explanation from the Frank Gr. Heilman Company; or that the director of agriculture within seven days after receiving complaints caused a copy of the complaint to be served on the Frank G-. Heilman Company; that a hearing was had; that a decision was entered in the office of the director .at Springfield dismissing complaint, or specifying the facts established; that the license was revoked; or that an action was commenced on the bond within 60 days after filing the decision.

A statute requiring a bond constitutes a part of the bond, and it must be assumed that the bond was executed with reference to the provisions of the statute (Estate of Ramsay v. People, 197 Ill. 572; Trustees of Schools v. Chambers, 240 Ill. App. 295; Omaha Nat. Bank v. United States Fidelity & Guaranty Co., 244 Ill. App. 204, and cases cited), but the whole act must be read into the bond and not only one section or portion. The act is passed as a whole and not in parts or sections. It is not proper to confine attention to the one section to be construed (Warner v. King, 267 Ill. 82); the entire act should be read together in order to get its true intent or meaning (People v. Wm. Henning Co., 260 Ill. 554), and the provisions of sections 3 and 4 of the act must be construed along with the provisions of the bond.

The statute is remedial and was intended to protect a large class of people, engaged in agriculture pursuits, who were, in the nature of the business, more or less remote from market, from imposition and actual fraud when intrusting their products and produce into the hands of commission men for sale, located at commercial centers. (Farmers Co-operative Elevator Co. v. Enge, 122 Minn. 316.) Remedial statutes must be construed liberally, so as to afford all relief within the power of the court which the language of the act indicates the legislature intended to grant, without departing, however, from the plain and obvious meaning of the language used (Newby v. Yellin, 257 Ill. App. 526, 530, and cases cited; Chicago, B. & Q. R. R. Co. v. Dunn, 52 Ill. 260, and McNulta v. Lockridge, 137 Ill. 270); and it will be presumed that the legislature did not intend the law to work a hardship or injustice. (25 R. C. L. 1022.) The language of the statute now under consideration is not ambiguous or uncertain. From a reading of sections 3 and 4 it is apparent that they are not in conflict. The conditions enumerated in section 4 are not conditions precedent. Whether a statute is mandatory or directory does not depend upon its form but upon the legislative intention to be ascertained from a consideration of the entire act itself, its nature, its object and the consequences which would result in construing- it one way or the other. In general, statutes directing the mode of proceeding by public officers are deemed advisory, and strict compliance with their detailed provisions is not considered indispensable to the validity of the acts done under them. (Blattner v. Dietz, 311 Ill. 445, 448.) There is no well-defined rule by which directory provisions of a statute may be distinguished from those which are mandatory. A statute couched in permissive language may, when construed in the light of the manifest purpose and intention of the legislature, be mandatory, and a failure of compliance therewith fatal to rights asserted thereunder. And a statute, mandatory in language, may be merely directory, depending upon the object to be subserved by the particular requirement. In cases where the statute does not, in express terms, require the thing to be done, and the act provided for is merely incidental or subsidiary to the chief purpose of the law, and not designed for the protection of third persons, and the statute does not declare the consequences of a failure of compliance, the statute will ordinarily be construed as directory and not fatal to rights granted. (Farmers Co-operative Elevator Co. v. Enge, 122 Minn. 316, 320.) To construe section 4 as mandatory and the only manner of procedure, and hold that a failure to comply with section. 4 is a bar to recovery would defeat the intent of the entire act, which was to protect shippers of farm produce from losing the proceeds of their labors by the wrongful acts of commission merchants. Section 3 was clearly enacted for the purpose of protecting them. Section 4, in our opinion, is directory or at least permissive, as there is no positive command that a compliance with section 4 is a condition precedent to the commencement of an action under section 3. There is no language in section 4 declaring a failure to comply with it shall be fatal to the right of action on the bond. Section 4 was not intended for the benefit of the surety on the Commission Merchant’s Bond. By section 4 the legislature mapped the course which must be followed to revoke the license issued to a commission merchant. We are also of the opinion that the legislature intended by sections 3 and 4 alternative courses of procedure, which is evidenced by the language found in -the two sections; section 4 reads “shall” in all portions, while section 3 reads “and the director ‘may’ bring an action.”

By this record it conclusively appears that the defendant executed the bond guaranteeing that the Frank G-. Heilman Company shall honestly account for and handle the produce received, and make payment to the consignors; that there has been a breach of the condition of the bond and that the consignors for whose benefit this action was brought have suffered the damages found by the trial court.

The judgment being just, it is affirmed.

Affirmed.

Gtridley, P. J., and Soahlah, J., concur.