text:
    The People of the State of Illinois ex rel. Edwin Novotny, Appellee, v. Clayton F. Smith et al., Appellants.
    Gen. No. 39,432.

      Opinion filed October 20, 1937.
    Rehearing denied November 2, 1937.
    Thomas J. Courtney, State’s Attorney, for appellants ;• Jacob Shamberg, J. L. Sheer and William P. Kearney, Assistant State’s Attorneys, of counsel.
    Emil Schlan, of CMcago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the superior court in favor of plaintiff for the sum of $1,186.25, wherein the court directed the issuance of a writ of mandamus against the defendants, commanding that they forthwith cause a warrant on the county treasurer of Cook county to be drawn, properly indorsed and payable to plaintiff Edwin Novotny for the aforesaid sum, as provided under “An act for the relief of the blind,” said amount representing amounts for the period from March 24, 1933, to and including July 1,1936, and commanding the defendants on to wit, October 1,1936, to cause a warrant to be drawn on the county treasurer, properly indorsed, payable to plaintiff in the sum of $91.25, under jTCf 109-117 (1) of the act entitled, “Benefits for Blind Adults,” Cahill’s 1933 Rev. St. ch. 23, §§ 1-10, and to certify the name of the plaintiff to be placed on the register of the clerk of the county court as entitled to the benefits of the act and that his name be certified as entitled to the benefits of the act on and after October 1, 1936.

The answer denies that Edwin Novotny is entitled to the relief prayed for in the petition for mandamus, because they say he lives with his father and mother; that he is well cared for and supported by his parents; that the said parents have sufficient income to care for all his needs.

Further answering defendants say that due to the economic conditions existing in and around the county of Cook, it has been impossible for the taxing bodies of Cook county to collect the full amount of taxes due and owing the said county; that due to the said failure of tax collections, these defendants are financially unable at the present time to pay all applicants for blind relief, but have appropriated the sum of $475,000, to pay said applicants; that said amount will render relief for 1,300 applicants for the year 1935; that said application number 2867 has been reached as of this date and in due course application number 3038 (plaintiff’s application number) will be reached and acted upon by said defendants.

According to the report of the proceedings the cause was tried upon a stipulation which reads as follows: “. . .it being agreed between the respective parties by their attorneys that this cause be submitted to the court upon the following facts as the same appear from the following statementsThen follows a statement of alleged facts on behalf of plaintiff which in turn is followed by another statement on behalf of defendants.

After the attorney for the plaintiff has recited the facts relating to the plaintiff’s condition and his compliance with the statute, it is then stated by way of stipulation: “. . . and that he is entitled to relief as provided in Sections 109 to 117 (1) of Chapter 23, Cahill’s 1933 Revised Statutes of the State of Illinois; that said application containing petitioner’s name, address and number of application, was duly registered by the said clerk of the County Court of Cook County, Illinois; that petitioner has complied with all the provisions of the act entitled, ‘ Benefits for Blind Adults, ’ ? ?

These are in a large measure the controlling questions in dispute in the case and we are confronted with a stipulation of the parties which, if followed, would only permit the determination of the issues in favor of plaintiff. The state having agreed with the plaintiff as to such stipulation, the plaintiff in turn accommodatingly agreed to a stipulation on behalf of the defense which provides, among other things: “. . . that petitioner was being supported by his father; that the statute in question was designed to meet the cases of persons who had no such support; that the word ‘income’ in the statute was used in a broad sense, and that it included income from all sources and not only income of the petitioner; in other words, if petitioner’s father afforded him support, petitioner was receiving an income to that extent; that, therefore, he had an income in excess of the amount prescribed by statute, ...” This part of the stipulation, of course, would be a defense, but if we were to accept both stipulations, which are contrary to each other, we would be confronted with an agreement on behalf of plaintiff that he should recover and another agreement on behalf of the defense that plaintiff should not recover.

Counsel for plaintiff then argues the validity of the statute and cites cases for and against the upholding of the same. This court is not empowered under the law to pass upon the validity or the constitutionality of any statute. The stipulations which are presented here are so confusing and contradictory that we are unable to pass upon the evidence.

We are obliged to remand this case for a new trial, so that it may be tried in the usual manner bv the production of witnesses. At the present time all we can say from a review of the record before us is that the manifest weight of the evidence does not support the judgment of the trial court. The decision reached in this case is quite an important matter as it involves the compulsory spending of vast sums of money from public revenue by court order and the rule that a writ of mandamus should not issue unless the right to the same is very plain, will not permit us to affirm the judgment of the trial court, when we are precluded from knowing the evidence. Inasmuch as this case must be retried we refrain from further discussion at this time.

For the reasons herein given the judgment of the superior court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hebel, P. J., and Hall, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Oscar L. Mann et al., Appellants, v. John F. Hahn and Commercial Trust and Savings Bank of Evanston. Commercial Trust and Savings Bank of Evanston, Appellee.
    Gen. No. 39,586.
    Opinion filed November 8, 1937.

      Green & Costigan and Kosdon & Kosdon, both of Chicago, for appellants; William C. Wines, of Chicago, of counsel.
    Shanesy & Hobbs, of Evanston, for appellee; Ralph D. Shanesy, Walter B. Hobbs and Harry P. Pearson, all of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiffs filed their amended complaint in chancery praying that defendants account for the proceeds of a check for $5,000, together with any increment thereof. Defendant bank filed its answer, denying liability, the cause was referred to a master to take the testimony and to report his findings of fact. He took the evidence and made findings of fact but no recommendation. No objections were filed to his report. A decree was entered finding the equities in favor of the defendant bank, the suit was dismissed as to it and plaintiffs appeal. Defendant Hahn testified in the case but was not served with process; he entered no appearance and the court expressly found that no disposition was made of any claim plaintiffs might have against him.

The record discloses that plaintiff Oscar L. Mann and defendant John F. Hahn were friends of many years standing; Hahn had attended to a number of business matters for Mann; on September 24,1929, the parties entered into a written trust agreement whereby plaintiff Oscar L. Mann was to turn over and deliver to Hahn $5,000 in trust. Hahn was given broad power to invest the money in first mortgages, first mortgage bonds secured by mortgage on improved or unimproved real estate, or any stocks or mortgage bonds of any corporation in the United States, with power to vary the investment, and was empowered to deal with the $5,000 or any stocks or bonds as in Hahn’s discretion might seem advisable; and provision was made for the distribution of principal and interest of the fund.

October 4, 1929, the Chicago Title and Trust Company at Mann’s request drew its check for $5,000 to the order of Hahn as trustee and delivered it to Hahn; this was the $5,000 mentioned in the trust agreement. The next day Hahn as trustee indorsed the check and delivered it to Emil R. Zilman, cashier and treasurer of John P. Hahn, Inc., which company did a large volume of real estate business, and on the same day, October 5,1929, John F. Hahn, Inc., indorsed the check and deposited it in its account with defendant Commercial Trust & Savings Bank of Evanston. Hahn did not invest the $5,000 in any securities, as required by the terms of the trust agreement, but the money was checked out of the bank by John F. Hahn, Inc., in the regular course of its business.

In April, 1933, Hahn advised plaintiff Oscar L. Mann that he had not invested the $5,000, but that it had been deposited and the proceeds used as above stated. He then agreed that he would repay Mann the money and thereafter, from time to time, made payments, usually 10 or 15 dollars, in some instances larger amounts, aggregating $3,604.25.

A receipt was attached to and a part of the check for $5,000 and was signed by John F. Hahn, trustee, acknowledging receipt of the $5,000. It also contained the following: “Payment as directed to create a trust fund for the benefit of Oscar L. Mann, Lucinda Mann and Horace Hayden Mann.” The evidence further shows, and the decree found, that John F. Hahn was president of John F. Hahn, Inc., and was the owner of 90 per cent of the stock of that corporation, which was engaged in the real estate and mortgage business in Evanston; that defendant Commercial Trust & Savings Bank of Evanston was a banting corporation doing business in Evanston, and that John F. Hahn was a director and its president. John F. Hahn, Inc., had one or more accounts with defendant bank and did a large volume of business with it. When Hahn handed the $5,000 check in question to Zilman, as above stated, an account was opened in the books of the John F. Hahn, Inc., in the name of “Oscar L. Mann Trust Account,” which showed the receipt of the $5,000. The check was then indorsed and appears as one of the items of deposit made on that day in the bank.

October 5, 1929, John F. Hahn, Inc., made two deposits in defendant bank, one consisting of three items totaling $25,548.67; one of the items was the $5,000. The other deposit consisted of 18 items aggregating $55,108.30. The check which was drawn on the First National Bank of Chicago was paid in the regular course to defendant bank.

The decree further finds that neither Hahn nor John F. Hahn, Inc., ever purchased any mortgage or other security with the $5,000. Thereafter Hahn, Inc., went into bankruptcy and John F. Hahn as trustee filed a claim in the bankruptcy court for the $5,000. It was stipulated between the parties that Lucinda Mann first learned of the deposit of the check with defendant bank in January or February, 1936, and that Horace H. Mann was not informed of the facts prior to January 1, 1936. The decree further found that Hahn made payments to plaintiffs Oscar and Horace Mann at various times, and that such payments were received by them, “with the understanding that the payments were on account of the trust.”

Counsel for plaintiffs say in their brief, “The evidence taken by the master was not conflicting in any particular; and, his findings of fact being satisfactory to all the parties, and there being no conclusions of law, no objections were filed or exceptions taken to his report”; and that the record “presents only the question of the liability of the defendant bank, as a -matter of law, upon such facts.”

The legal proposition advanced by counsel for plaintiffs, upon which the liability of the bank is predicated, is that the bank was admonished by the terms of the check that it represented trust funds, and any disposition of the check or its proceeds indicating that the fund was being diverted from the trust, entails upon the depositary bank the duty of inquiring whether such disposition was a misapplication of the trust fund, ‘ ‘ and unless such inquiry is pursued, the depositary is liable as a participant in the conversion of the trust funds.” And the cases of Massachusetts Bonding & Indemnity Co. v. Standard Bank, 334 Ill. 494, Haase v. Denisch, 268 Ill. App. 281, and other authorities are cited. And counsel contend that defendant bank was informed by the text of the check that the $5,000 was a trust fund because it was payable to “John F. Hahn, as Trustee ’ ’ and also bore upon the face of the receipt attached to the check the following, “Payment as directed to create a trust fund for the benefit of Oscar L. Mann, Lucinda Mann and Horace Hayden Mann”; that the bank knew that Hahn was the president and a stockholder of John F. Hahn, Inc., and that these facts were sufficient to apprise defendant bank when the check was deposited that the trust funds were being diverted.

The Massachusetts Bonding Company case (334 Ill. 494) was a bill for an accounting brought against the Standard Bank for wrongfully paying checks drawn by Frank T. Joyner, as receiver, he having been appointed by the circuit court of Cook county. The court classifies the checks under four heads: (1) checks signed by Joyner individually and not as receiver; (2) checks drawn by Joyner as receiver but in which the bank was said to have benefited by reason of their payment; (3) checks in which the bank is said to have assisted Joyner in the misappropriation of the trust, fund. The checks classified in the third group were checks drawn by Joyner as receiver for which he received drafts payable to himself individually and some other checks which show that the fund was to be used for his personal use. In each of the three classes the bank was held liable. The fourth group of checks was signed by Joyner as receiver and payable to cash or currency, and also checks signed or issued to miscellaneous payees. These checks bore indorsements, some of them by Joyner and other parties, some of them by other parties only, and the checks were paid to such other parties.

It was said that there “was nothing in these transactions or in the record to indicate that plaintiff in error [the defendant] had any knowledge that these checks were not being used for receivership purposes.” In stating the rule of law on which a bank in such a situation is held, the court said (p. 502): “The settled rule is, that if a depositor seeks to pay his own debt to the bank by an appropriation of the funds to his credit in a fiduciary capacity, the bank is affected with knowledge of the unlawful character of the appropriation and will be compelled to refund. . . . The reason for the rule is that the bank has knowledge that the check is in payment of the trustee’s private debt. The bank officials may be said to have knowledge of the character of a transaction when a reasonably intelligent person would have such knowledge.” And continuing the court said (pp. 503-4): “The depository has a right to presume that the trustee will make legal use of the funds, (State Nat. Bank v. Reilly, supra, [124 Ill. 464]) but where the transaction itself indicates that the use is a personal one the depository should no longer indulge such presumption as to that transaction.” And the court further said (pp. 506-7): “A bank may properly make payments on checks properly drawn unless the bank has some notice of an adverse claim or that the same are improperly drawn or in payment of the receiver’s personal indebtedness, otherwise there would be no safety for a bank receiving deposits of trust funds to be paid out on a checking account. The enforcement of the rule insisted upon by defendant in error would make it practically impossible for fiduciaries to find a bank which would handle trust business of such character. . . . There is no evidence in the record to charge plaintiff in error with notice that any of the checks last listed [the fourth group] were drawn in payment of Joyner’s personal obligations or for his own use. The law does not require a bank, under such facts, to assume the hazard of correctly reading in each check the purpose of the drawer, or, being ignorant of the purpose, to dishonor the check. . . . It is not claimed that plaintiff in error had any interest in or derived any benefit from said checks.” And it was held that the bank was not liable for the checks mentioned in that group.

In the instant case the check was made payable to John F. Hahn, trustee. He indorsed it as such and delivered it to an employee of John F. Hahn, Inc., and the check was afterwards indorsed by that corporation and deposited in defendant bank for collection. The check was paid in the regular course of business by the bank on which it was drawn and the funds placed to the credit of John F. Hahn, Inc. Afterward the money was paid out on checks drawn against the account by John F. Hahn, Inc. In these circumstances we think it cannot be said the bank had any knowledge that the money was being wrongfully diverted.

Counsel for plaintiffs in their reply briefs say that they make no contention that the bank had any knowledge that the money was being diverted by reason of the fact that Hahn was president of the bank. In the instant case, if the defendant bank were held liable under the facts disclosed, it would be “practically impossible for fiduciaries to find a bank which would handle trust business of such character. ’ ’

In the Danisch case (268 Ill. App. 281) a cashier’s check was made payable to Danisch as trustee for certain named persons. The trustee indorsed the check as such and then indorsed it individually. He presented the check to the defendant bank which gave him $2,000 in cash and credited his individual account in the bank with the balance of the check, which was more than $7,000. He misapplied the $2,000. Subsequently the bank withdrew the fund from Danisch’s private account to pay his obligation to the bank. It was clear the bank knew the trust funds were being diverted and being used for the personal benefit of Danisch. It is obvious the facts in that case are not substantially the same as the facts in the instant case. There the check showed the money was the property of the trustee but part of it was given to him individually and the balance deposited in his personal account. And it was held that the bank was liable. It was clear in that case that the bank knew he was tailing the trust- funds and using them for his own purpose.

In Hood v. Kensington National Bank, 230 Pa. 508, it was held the mere fact that a check is made payable to a person as guardian and indorsed as such, imposes no duty upon the bank, with whom the check was deposited for collection by one of its customers, to question the title of the depositor to the check. The court there said (p. 510): “The theory of the plaintiff seems to be that because a check came to the bank in the regular course of business, which was payable to a certain person as guardian, the bank was not at liberty to accept the check from anyone else, although regularly indorsed by the payee. This theory is far fetched, and is without any reasonable basis. The bank was under no duty to supervise the acts of Gigon as guardian, nor was there anything in the transaction to be criticised in so far as the bank was concerned. . . . Whatever reason Gigon may have had for transacting the business in the precise manner in which he did it, was his own. The bank was not dealing with him in the matter but was concerned only with its own customer, the Hood Leather Company, which came to it with a check drawn upon a bank in another city and state, regularly indorsed, which it was requested to collect. There was nothing in the occurrence to arouse suspicion, or call for comment or question, upon the part of the defendant bank. If there was any misuse of the funds by the guardian, it was, so far as this record goes, something of which the defendant bank had no knowledge.” We think the facts in that case are analogous to the facts in the case before us.

For the reasons stated the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

McSurely and Hatchett, JJ., concur.


author: Mr. Justice McSurely

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Anderson Williams et al., Appellants.
    Gen. No. 39,390.

      Opinion filed November 8, 1937.
    Rehearing denied November 22, 1937.
    Thomas Marshall, of Chicago, for appellants.
    Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendants were judges in the 37th precinct of the 20th ward in the city of Chicago in a primary election held April 14, 1936; proceedings were commenced charging them with misconduct as such judges and seeking to hold them in contempt of court based on sec. 13 of art. 2 of the election law, ch. 46, H 267, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 43.277; after hearing they were adjudged guilty and each was sentenced to imprisonment in the county jail of Cook county for one year; they have appealed.

The trial court found that as judges of this election they had (1) permitted ballots to be cast in the names of persons who did not appear at the polling place and who did not vote. (2) Permitted one judge only to go into booth to assist voters. (3) Permitted persons to vote whose names were erased from the general register. (4) Permitted persons other than respondents to count and record ballots. (5) Made a false canvass.

Defendants say there was no convincing evidence to support these findings.

As to the first finding, 10 persons testified that they did not vote, although their names appeared in the poll books as voting; one of these persons was Jim Cole, but all of the defendants testified that they knew bim personally and that in fact he did vote; that as to the other persons they had no recollection; that they did not know the persons registered and did not know the persons who claimed to be entitled to vote under the names of those not voting. Defendants say they did not knowingly allow anyone to vote who was not entitled to vote.

As to the finding that defendants permitted one judge instead of two, as required by law, to go into the voting booth to assist voters, the evidence is conflicting and unsatisfactory. A watcher, Edward Friedman, testified that this was done in 15 or 20 cases. This is denied by defendants. Another watcher, Herman Getner, testified tending to support defendants in this respect. He said that “one of the judges and one of the clerks” went into the booths to assist voters.

It seems to have been through inadvertence that two persons were permitted to vote whose namés had been erased from the register. There was a great deal of disturbance in the polling place; 485 persons voted, which one of the witnesses described as consisting of 98 per cent colored voters of the “lower class,” and many of them “half drunk”; that some of the voters wpuld call the name right and get the address wrong; that there was a great deal of noise so that it was almost impossible to hear. It also appears that the voting population is not permanent but moves frequently from place to place. We are of the opinion that as to the alleged misconduct on the part of the election judges, as above described, the evidence was not sufficient to justify the finding of guilty. Under all the untoward circumstances the errors in this respect could occur without the knowledge of the judges or any intention to be guilty of misconduct.

The findings that the judges permitted persons other than the officials to count and record the ballots and that a false canvass was made are supported by more convincing evidence. The ballots were opened by the court and canvassed. While the results shown by the official canvass of the principal officers and that shown by the recount by the court show some discrepancies, they are not so glaring as to prove intentional wrong doing. The differences run from one vote for one office to seven for another. Any difference between the official returns and recount votes could be ascribed to unintentional errors in the counting.

However, when we examine the vote on the municipal court judges we find striking differences. The evidence shows that the canvass of the votes was commenced late in the day or in the early hours of the following morning; the judges and clerks were on duty since 6 a. m. the day of the primary election and worked until 3 or 4. (one of the witnesses said 5) o’clock of the morning of the following day. About 2:30 o’clock in the morning the canvass for the municipal court judges began, and there is evidence that at this time the judges took a spell off to rest. Defendant Mrs. Sockel testified that she got tired “and did lie down late in the evening. ’ ’

At this time the precinct captain, Bert Lowe, and another, an outsider named Maurie Epstein, apparently relieved the judges in counting the ballots for municipal court judges. Although this is denied by-defendants, yet the recounts of these ballots show such discrepancies as to indicate that there was something wrong. The official returns and recount of the ballots for all the other officers voted for at this time showed no differences of any importance, yet the votes for the municipal judges show striking discrepancies. For instance, candidate Fffiher was credited with 102 votes but on the recount he had only 26; Lowitz was given 104, but the recount showed he actually received only 15 votes; Brooks gained 36 votes; G-reen 38. The votes for a number of other candidates show a marked difference between the official returns and the recount. Further evidence that toward the latter part of the counting of the ballots the judges were remiss is shown on the returns of the proposition vote. One of the watchers testified that about 3:30 in the morning of the day following the election; they began to count the special proposition ballots, and one of the clerks said, “We know about how many votes are in it, there is no necessity to count them. ’ ’ The figures returned by the officials on this vote were, “Yes” — 421, “No” — 61. The recount showed, “Yes” — 201, “No” — 51. This discrepancy of 220 “Yes” votes tends to support the charge that the “Yes” votes were not counted but only guessed at.

Counsel for defendants is correct in saying that this special proposition election was not included in the contempt petition, which charges misconduct with reference to votes for candidates for the nomination by political parties.

Defendants denied that any outsider participated in counting the ballots for the municipal court judges and also claimed that they counted the votes for the special proposition. The glaring discrepancies in the votes for municipal court judges and in the special proposition is convincing evidence that toward the end of a long and tiring day the judges were derelict with reference to counting the ballots cast.

Counsel for defendants make a number of points with reference to the validity of the proceedings and of the statute. It is sufficient to say that these points have already been considered and passed upon adversely to defendants’ contentions in a number of cases. Sherman v. People, 210 Ill. 552; People v. Blackwell, 342 Ill. 223; Catherwood v. Morris, 360 Ill. 473, 479; People v. Enger, 364 Ill. 464.

It is also argued that the trial court should have granted defendants’ prayer for a change of venue. The point is without merit. Sec.' 13, art. 2 of the Elections Act, Ill. State Bar Stats. 1935, ch. 46, ft 267; Jones Ill. Stats. Ann. 43.277, makes judges and clerks of election officers of the county court, and as such liable in a proceeding for contempt for any misbehavior in their offices. We do not understand how there could be any change of venue from the court trying its own officers for contempt.

Complaint is made of the opening of the envelopes containing the ballots by the State’s attorney’s office. There is no evidence that there was any change made, and it is shown that the ballots and other papers were returned unchanged to the envelopes.

It is also said that the trial court had no authority to recount the ballots as the proceedings contemplate a hearing “on oral testimony” exclusively. We do not read the statute as limiting the character of evidence which may be submitted in this proceeding. It is self-evident that the court must, in passing upon the charges, consider the tally sheets, ballots, or any other documentary or oral evidence from which the court may determine the innocence or guilt of the parties accused.

The last point made is that the sentence of one year in jail is excessive. All the defendants, apparently, are honest, law-abiding citizens, and they testified that they did not knowingly do anything improper or illegal in the performance of their duties. The mistakes above referred to were apparently caused by the physical exhaustion of defendants and especially of Mrs. Sockel. Under the present law the judges and clerks of elections must be at their post on election day at six o’clock in the morning, they must remain there all day, and until all the votes are canvassed, under most confusing surroundings and conditions of hardship. Such conditions strongly emphasize the necessity for providing two sets of officials in elections, one to conduct the election and the other to make the count. Fraud-proof voting machines would insure an accurate canvass of the votes cast.

However, physical disability is not a sufficient excuse for dereliction of duty, and while we are of the opinion that the one year sentence is excessive, yet there should be some punishment. We are of the opinion that a moderate fine, such as $50, would be sufficient punishment. As we said in People ex rel. Rusch v. Matthiesen, 286 Ill. App. 615 (Abst.), we would enter judgment in this court but probably have not the power. Ash-Madden-Rae Co. v. International Ladies Garment Workers’ Union, 290 Ill. 301.

The judgment against the defendants is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

O’Connor, P. J., and Matchett, J., concur.


text:
    Frank Cuneo, Appellant, v. City of Chicago, Appellee.
    Gen. No. 39,412.

      Opinion filed November 8, 1937.
    Rehearing denied November 22, 1937.
    Matthias Concannon, William H. Dillon and John L. McInerney, all of Chicago, for appellant.
    Barnet Hodes, Corporation Counsel, for appellee; John W. McCarthy and Alexander J. Besa, Assistant Corporation Counsel, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover damages to his property at the southwest corner of Clark' and South Water streets in Chicago caused by defendant changing the grades of these streets adjoining plaintiff’s property, in connection with the construction of the Wacker drive improvement. Plaintiff presented evidence tending to show that the market value of his property had been depreciated by reason of these changes, and defendant introduced evidence tending to show the contrary. The jury returned a verdict for defendant and plaintiff appeals from the judgment thereon.

In March, 1913, the Northern Trust Company, as trustee, leased the premises to plaintiff for a term of 99 years; the property has a frontage on South Water street of 22 feet and 90 feet on Clark; the lease provided that the lessee should pay ground rent of $6,300 a year and all taxes and assessments levied or assessed against the property.

In 1916 and 1917 plaintiff erected an eight-story modern office and store building covering the entire frontage at a cost of approximately $180,000; the first floor was designed for use as retail stores, the upper floors for office space. Before the building was erected South Water and Clark streets were on a level plane with sidewalks and roadways. The building was* so constructed that all entrances to the building were level with the sidewalks.

In June, 1922, defendant by its city council passed an ordinance providing for the construction of a two-level street in South Water street and for raising the grades of the intersecting streets from Lake street (the next street south) to South Water street, so as to make the intersecting streets meet the elevation of the upper level of what is now called Wacker drive.

This work was commenced in October, 1925, and finished in October, 1926. Upon completion of the work the sidewalk on the upper level of Wacker drive adjoining plaintiff’s property was about 5 feet 7% inches above the level of the first floor of plaintiff’s building, and the sidewalk on Clark street next to Wacker drive was also about the same distance above the floor level of the first floor. The sidewalk sloped down from Wacker drive along Clark to Lake street, so that at the south end of plaintiff’s building the new sidewalk on Clark street was 4 feet 8 inches above the level of the first floor of the building.

After the completion of Wacker drive plaintiff remodeled his building, putting in a new first floor at an elevation conforming with the elevation of the upper level of Wacker drive and the new grade in Clark street and raised the floor of the basement so as to make it. conform to the sidewalk in the lower level. All the witnesses agreed that such reconstruction was necessary. This work was commenced in October, 1926, and completed in May, 1927. As a result the ceiling height of the first or store floor and of the lobby was reduced from 15 feet 17/8 inches to 9 feet 8 inches. The cost to plaintiff of this reconstruction was $34,674.96. There is no dispute as to this and it is stipulated that no part of this expenditure has been collected by plaintiff from defendant or anyone else.

It was also agreed that October 1,1925, was the date for determining the fair cash market value of plaintiff’s property before the Wacker drive improvement, and October 1, 1926, the date for determining this value after the improvement.

It is conceded that under sec. 13, art. 2, of the Constitution of 1870 the right to recover compensation for damages caused by change of street grades is established. Rigney v. City of Chicago, 102 Ill. 64; Chapman v. City of Staunton, 246 Ill. 394.

Bach of the parties called two qualified witnesses who gave their opinions on the effect on plaintiff’s property of this improvement, and plaintiff argues that the verdict for the defendant is against the manifest weight of the evidence. Plaintiff’s witnesses gave their opinion that the fair cash market value of plaintiff’s property, prior to the construction of Wacker drive, was $193,952, and after construction of the street improvement the value was approximately $85,000. (The witnesses differed slightly in their estimates.) Both testified that there had been a loss to plaintiff of approximately $109,000. These opinions took into consideration the rents actually derived from the property. It was shown that the average net income during 1921 to 1924 inclusive before the improvement was a little over $17,000 a year, while after the improvement and the reconstruction of plaintiff’s property the net income during 1928 and 1930 inclusive was something over $10,000 a year. Plaintiff’s witnesses based their opinions as to depreciation in value of the property upon this substantial reduction in the rental income.

South Water street is the first street south of the Chicago river and in making Wacker drive all of the property on the north side of South Water street abutting the river was taken. The change wiped out South Water street and made, a double level street running along the south bank of the river. One witness described the upper level as a “modern boulevard,” attracting shops, stores and all kinds of high grade business ; that after the improvement there was a sweep to the north across the drive to the river, giving “approximately 300 feet of uninterrupted light.” Another witness said the construction of the drive made five blocks of property on the south side of the drive, running from Franklin street to State street, available for improvements.

As opposed to plaintiff’s witnesses Mr. Prussing testified for defendant that in his opinion the value of the premises before the improvement of Wacker drive was something over $162,000, and after it, with the building reconstructed, was over $195,000. Defendant’s witness Snelling testified that in his opinion, before Wacker drive was built the market value of the premises was over $203,000, and that immediately after this, with the building reconstructed, it was worth over $240,000.

We shall not attempt to follow the close and able analysis made by counsel for plaintiff of the testimony of defendant’s witnesses. Such testimony is largely a matter of opinion and is open to attack from various points.

Rental receipts should be considered in determining the market value of property and are an important factor, but other circumstances should also be considered in determining market value. City of Chicago v. Witt, 289 Ill. 520, 524; City of Chicago v. Jackson, 333 Ill. 345, 350.

Evidence was introduced showing that to a large extent the decline in rentals received by plaintiff was due to the removal of the market business from South Water street. Mr. Trainer, testifying for plaintiff, described South Water street prior to the construction of Waeker drive. The buildings on that street were non-fireproof, of the store and loft type, used for produce business and storage. Mr. Lyons described the business on South Water street as “the great central produce market of the middle west.” The street was congested from “hub to hub” and it was a distributing center for restaurant and hotel men and dealers in fruit products from all over Chicago and also from all over the middle west. The market was known “from coast to coast.” It was in evidence that at this time plaintiff’s building was largely occupied by persons related to this market business. Such tenants were officers of some of the market stores, a restaurant and also telegraph companies, for, as one witness said, the South Water street men used the telegraph a great deal.

The Waeker drive improvement contemplated and caused the removal of this entire market business to another part of the city of Chicago. In other words, the market business at this locality no longer existed. Defendant argues that naturally persons, who rented space in plaintiff’s building because of their connection with and its proximity to the market business, would no longer become tenants of plaintiff, and says that this diversion of business from plaintiff’s property is an element of damages for which no recovery can be had against defendant. In Hohmann v. City of Chicago, 140 Ill. 226, 231, the defendant had constructed a viaduct which diverted a large part of the public travel away from the street on which plaintiff’s business was located; he claimed damages because the number of his customers was diminished by this construction. It was held that he had no legal right to recovery. A similar action was brought by the plaintiff in City of Chicago v. Spoor, 190 Ill. 340, 349. The court followed the decision of the Hohmann case, holding in effect that plaintiff had no right as against the city to have the street maintained in such a way as would be more convenient or profitable to the adjoining property owner, and that as he had no legal right of that kind there could be no recovery for resulting damages. See also City of Chicago v. McShane, 102 Ill. App. 239, 243, 244. The removal of the market from South Water street had the effect of diminishing the rental receipts of plaintiff’s building, and we hold that defendant is not liable in damages for this.

Bearing in mind that October 1, 1926, the date when Wacker driv.e was completed, was the date for determining the market value of the premises, we think it a fair conclusion from the testimony of all the witnesses that on that date the opinion was general that the Wacker drive improvement would have a marked effect on increasing the market value of the properties adjacent to the drive. It is reasonable to infer that that expectancy would improve the market value of plaintiff’s property. Prussing testified that after the drive was constructed, in 1926, 1927 and 1928, nearly every piece of property on the south side of the drive was either sold or leased for a long term. Plaintiff’s witness, Mr. Trainer, said that it was then his belief that the construction of this drive would “develop the street and the abutting properties to better use.” And upon the strength of his judgment buildings involving millions of dollars were constructed on the drive. This witness, a man of large experience in valuing Chicago properties and of good judgment, summed up his opinion by saying, “that eventually the growth in the central district of the city and the Wacker improvement will prove beneficial to that property. . . . After conditions return to normal this neighborhood will have more chance to prosper with the present improvement than with old South Water street.”

The jury, considering all the circumstances, including the removal of the market business, together with the opinions of the witnesses, could reasonably arrive at the conclusion that no recovery could be had against the defendant.

Plaintiff alleges errors which he says entitle him to another trial. The ordinance for the Wacker drive improvement provided that the cost should be paid for by special assessment, and plaintiff offered in evidence a certified copy of an order entered by the county court of Cook county in the proceedings for confirmation of the special assessment, which order recites that the court having heard evidence finds that plaintiff’s property will not be benefited by the improvement and the assessment against his property is canceled. Plaintiff argues that this finding was res adjudicata as to whether the property was benefited; that the question was no longer open and that any evidence which tended to show that the improvement increased the value was incompetent. In answer it may be said that both parties without objection introduced evidence as to values, based upon the future development of the locality. It was not claimed upon the trial that this question had been adjudicated in the county court so as to make such testimony incompetent. Moreover, the finding of the county court upon an assessment to pay for improvements is not necessarily res adjudicata. City of Chicago v. Clark, 233 Ill. 404; People v. City of St. Louis, 367 Ill. 57, 69.

Furthermore, the refusal to admit the order of the county court did not injure plaintiff. Defendant argues that the county court merely found that the market value of the property would not be greater than it was before; that the market value is the price which a purchaser ready, able and willing, but not compelled to purchase, would pay for the property in October, 1926 ; that such a price would necessarily take into consideration the cost of remodeling the property to conform to the conditions created by the improvement; if this cost exceeded the benefits resulting from the improvement the market value would be less than it was before the improvement; if the cost was less than these benefits, then the value would be enhanced by the improvement; in finding that the property was not benefited the county court did no more than find that the value of the resulting benefits did not exceed the cost of remodeling. This reply by defendant is sound.

Plaintiff further argues that counsel for defendant in his closing argument to the jury made prejudicial remarks which necessitate a reversal. Defendant’s attorney referred to the plaintiff as one of the “biggest taxpayers in Chicago,” with implications that he was a man of wealth. Such comments are ordinarily improper, but examination of the record shows that plaintiff’s financial standing was alluded to on cross-examination by plaintiff’s attorney of defendant’s witness Prussing. He was asked whether or not plaintiff owned a great deal of property in Chicago and whether plaintiff and Ms family were one of the largest owners of real estate in CMcago and had not bought other pieces of property for large amounts. All the language wMch emphasizes the wealth and importance of the plaintiff can be found in interrogatories propounded by Ms attorney. This calls for the application of the rule that a statement to the jury, otherwise objectionable, cannot be questioned when it has been invited. Weinlander v. Volkman, 153 Ill. App. 137.

Plaintiff also complains of the statement of counsel for defendant to the jury to the effect that plaintiff’s property bore no portion of the cost of the Wacker drive improvement. This fact was testified to by Mr. Lyons, one of the witnesses for plaintiff, who said that “this property was not assessed and paid no assessment.” It thus became fair subject of comment.

Upon consideration of all the facts and circumstances shown by the evidence it cannot be said that the verdict is mamfestly wrong, and as no errors occurred upon the trial which require a reversal, the judgment is affirmed.

Affirmed.

O’Connor, P. J., and Matchett, J., concur.


author: Mr. Justice Matchett

text:
    The People of the State of Illinois, Defendant in Error, v. Robert Luster, Plaintiff in Error.
    Gen. No. 39,538.

      Opinion filed November 8, 1937.
    Benjamin 'O. Bachrach, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Bembe, Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

January 21, 1937, an information, duly verified, was filed in the municipal court of Chicago, charging that defendant, Luster, on January 17, 1937, in the city of Chicago, county of Cook and State of Illinois, “did then and there unlawfully, intentionally and maliciously operate a certain motor vehicle, to-wit: Chrysler Airflow Motor No. C-10-2945 upon the streets and public highways within the said City of Chicago, County of Cook and State of Illinois in the absence of the owner, the said J. G. Lucas, of the said motor vehicle, and without the consent of the said J. G. Lucas, in violation of section 36, chapter 95% of the Revised Statutes of Illinois.” (See Ill. Rev. Stat. 1937, ch. 95%, § 36; J ones Ill. Stats. Ann. 85.036.) It appearing to the court that defendant was present the court took jurisdiction of his person and ordered the bailiff to take defendant into custody forthwith, which was done. Defendant entered a plea of not guilty and waived trial by jury. The cause was submitted by agreement to the court for trial. Evidence was heard and the arguments of counsel. Thereupon the court found the defendant guilty as charged, and the finding was entered of record. The State’s attorney then moved for final judgment on the finding, and it was adjudged by the court that defendant was guilty of the criminal offense of driving an automobile in the absence and without the consent of the owner. Defendant was then sentenced to confinement at labor in the house of correction for a space of five days from and after the delivery of his body to the superintendent of said house of correction, a motion in arrest of judgment having been overruled. A motion to vacate the sentence was entered and continued until February 6, 1937, when the same was overruled and denied.

Defendant sued out this writ of error and argues in the first place that the judgment should be reversed because the statute is so uncertain and indefinite as to make the section in question ambiguous. In support of this contention defendant cites Vallat v. Radium Dial Co., 360 Ill. 407; Parks v. Libby-Owens-Ford Glass Co., 360 Ill. 130, and Boshuizen v. Thompson & Taylor Co., 360 Ill. 160, where in holding- a section of the so-called Occupational Diseases Act invalid the Supreme Court said in substance that a law must be complete in all its terms and must be definite and certain enough to enable every person, by reading the law, to know what his rights and obligations are and how the law will operate when put into execution. The section of the motor vehicle law here in question provides: “No chauffeur or other person shall drive or operate any motor vehicle or motor bicycle upon any street, or highway in this State in the absence of the owner of such motor vehicle or motor bicycle without said owner ’s consent; and no chauffeur or other person having the care of a motor vehicle for the owner shall receive or take directly, or indirectly, any bonus, discount or other consideration, for the purchase of supplies or parts for such motor vehicle or for work or labor done thereon by others,” etc.

The evidence taken in this case shows beyond reasonable doubt that the informant, J. Gr. Lucas, was the owner of the Chrysler automobile which was used by himself and his wife. Mr. Lucas rarely drove the automobile himself. Defendant Luster was employed by Mr. Lucas January 17, 1937, and acting as chauffeur brought the car from the garage and took Mrs. Lucas downtown, where she visited the offices of an optician, defendant then drove Mrs. Lucas to her home. The informant testifies he told defendant to “take the car back to the garage, Luster, and don’t drive it anywhere else.” Mrs. Lucas came out and gave Luster the same instruction in the presence of Mr. Lucas. The car was kept in a public garage' on Pershing road, just opposite Rhodes avenue, about two blocks from 3646 South Parkway where Mr. Lucas lived. Defendant left the residence of his employer on the night in question and after receiving these instructions, about ten minutes of eight o’clock. Later in the evening, at 9:30, at 10:30 and 11:30, Mr. Lucas called the garage and learning the automobile was not there notified the police. Officer James arrested defendant at the northeast corner of Pershing road and Bhodes avenue, at 3:30 a. m., January 18, 1937, when defendant drove up to the corner in the Chrysler automobile belonging to Mr. Lucas. The officer testified that he questioned defendant at that time, and that defendant said he had left the Lucas home about eight o’clock on the previous evening and then went.with his wife to visit some relatives and then to visit a friend, and that this was the reason he was driving the automobile at that hour in the morning. The officer says he asked him whether he had permission to use the car at that time and that he said, “No,” but that he used the car to take his wife to visit relatives and friends. He was put under arrest and taken to the 4th district police station; the following day, January 19, 1937, he was brought to the State’s attorney’s office and was interrogated there in the presence of an assistant State’s attorney, Mr. Lucas and Officer James. His statement then made to the State’s attorney is in evidence.

Defendant testified that on the evening in question Mr. Lucas told him to put the car away, and that he should not take any chances; that Mrs. Lucas said to him, “Don’t drive the car tonight”; that Mr. Lucas said, “Do not take any chances, Luster.” Defendant said that when Mr. Lucas told him not to take any chances he understood that to mean that he was to be careful how he was driving. He says he did not hear him say anything about driving straight to the garage, but Mrs. Lucas told him not to drive the car, and he understood that she had a right to give him instructions about that matter. Defendant says he did not take the automobile right to the garage but went home and picked up his wife and went over to her uncle’s home and from there to 31st street, where he stayed for awhile, and from there carried a lady to her home on Wabash avenue and then returned the automobile back to the garage. He pulled into the garage at three o’clock a. m., and waited for someone to take him home. He says that he said, “Ain’t nobody here?” He said, “I will go up to the restaurant at 39th and Vincennes and see Melvin in there.” Melvin was not in, but a man who was mopping in that place said to defendant that he did not think Melvin was working. Defendant then took the car and turned around to go back to the garage and when he got back Officer James and a party were waiting in the car. They then took the car from him and locked him up. Defendant says he paid for his own gas that night and took good care of the automobile. He admits that he told the police that he did not have any authority to drive the automobile at that hour. Mr. Lucas testified that when the car was returned it had mud on it, showing the use that had been made of it. The two windshield wipers were gone, part of these was picked up on the seat, the cigar lighting case or ash tray was demolished and the front bumper was loose.

It is argued for defendant that the word “absence” as it appears in the statute is so indefinite as to make it impossible to ascertain the true intention of the legislature in the enactment of the statute. Defendant asks whether it means absence from the State, absence from the residence of the owner, the nonpresence of the car itself, or absence from the scene of the taking of the car. The contention is in our opinion without merit. The meaning of the word “absence” when taken in connection with the context, has a well defined meaning which is generally understood by people who speak our language. As the Supreme Court said in People v. Lloyd, the legislature is not required to define the meaning of words which are in common and daily use, and in McNaught v. Hines, 300 Ill. 167, it was said that where the language of the statute was unambiguous, there was no room for construction, that words used must be taken in their ordinary, natural and commonly received sense. The elements which go to make up the offense created by statute are clear. In the first place as to the persons to whom it refers, it may be a chauffeur or it may be any other person. As to the thing prohibited, it is either the driving or operation of a motor vehicle or motor bicycle upon any street or highway in the State, while the owner is absent, which, of course, means absence from the place where the vehicle is being operated without the owner’s consent.. We think the provision of the statute is clear, simple, and easily understood.

Defendant contends in the second place that the provisions of the statute are not applicable to a private chauffeur, because his employment by the owner constitutes the grant of a continuing consent to drive the automobile upon the streets or highways of the State. It is said the termination of the day’s work by such private chauffeur does not operate as a withdrawal by the owner of the right of the private chauffeur to operate or drive the motor vehicle on the streets and highways, irrespective of whether that might mean the absence of permission to use the car upon an errand connected with the chauffeur’s own business or pleasure. It is urged that the contract itself is inconsistent with the two essential factors necessary to constitute violation of the law, namely, the absence of the owner and the lack of the owner’s consent. It is urged that if the legislature had intended to make criminal the use of the owner’s car without his consent by a person employed to drive the owner’s car, the legislature would have used language similar to that used by the legislature of Tennessee in a statute of that State, which was construed in Stovall v. New York Indemnity Co., 157 Tenn. 301, 8 S. W. (2d) 473. We cannot give our assent to this contention. The mere fact that a person employs a chauffeur to drive his automobile does not mean that the employer parts with the possession of his property, nor does it mean that he forfeits his right and power to control and regulate the use of his own automobile. He is, notwithstanding such contract, the absolute owner and possessor of the automobile. The possession is his and not that of his servant or chauffeur. The chauffeur, by virtue of his employment, has the custody of the automobile as distinguished from its possession, but he has the care and charge of it merely for the owner, who still has the right to control it. If the owner is present and witnesses the chauffeur driving the automobile, then, of course, the consent of the owner in the absence of objection by him would be implied. If the owner is not present the chauffeur may drive the vehicle for such time, in such manner and to such places only as he may have permission, express or implied, from the owner to drive it. Otherwise the chauffeur would have absolute and complete control of the automobile, although it was the property of another, and could use or drive it as he saw fit, irrespective of the wishes of its owner. If defendant’s theory is correct, the chauffeur could drive the automobile either in the State or out of it, and irrespective of the wishes of the owner, his employer. We do not so understand the law. While for the time being the chauffeur may have the automobile in his custody and control, the property therein is with the owner, and the legal possession remains in the owner. The chauffeur using the automobile and driving it contrary to the directions of the owner may be guilty of trespass or even of conversion. This is the act which the statute declares to be a misdemeanor. In this case the evidence shows without contradiction that the informant was the owner of the automobile, that in his absence the defendant without his consent drove the same on the streets and highways of his State. Not only was the driving done without permission of the owner but contrary to his express directions. The evidence shows that defendant was guilty of the offense as charged beyond a reasonable doubt, and the judgment of the court is affirmed.

Affirmed.

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


author: Mr. Presiding Justice Hebel

text:
    Florence B. Robinson, Appellee, v. American Surety Company of New York and Clarence O. Rosen, Appellants.
    Gen. No. 39,230.

      Opinion filed November 10, 1937.
    Rehearing denied November 22, 1937.
    Dent, Weichelt & Hampton and Anderson & Clarke, both of Chicago, for appellants.
    Campbell, Clithero & Fischer, of Chicago, for appellee; Carlton L. Fischer, of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This was an action by the plaintiff to recover damages sustained by her by reason of the wrongful seizure of checks for $22,000 belonging to her, and also to recover expenses and attorneys’ fees incurred by the plaintiff in the recovery of her money from the receiver, and was based upon a complainant’s bond, which was executed for the appointment of a receiver in a creditor’s suit.

The suit of Florence B. Robinson, who was one of the defendants in the suit entitled Clarence O. Rosen v. Charles M. Watson and Florence B. Robinson, circuit court of Cook county, No. B-70014, is against Clarence O. Rosen and American Surety Company of New York, principal and surety upon the complainant’s additional bond in that action, which reads as follows:

“Bond of Complainant on Petition for Appointment of Receiver Additional Bond.

“Know All Men By These Presents: That we Clarence O. Rosen as principal and American Surety Company of New York as Surety, all of the County of Cook and State of Illinois, are held and firmly bound unto the People of the State of Illinois, in the sum of Seventy-four Hundred Dollars ($7400) for the payment of which sum well and truly to be made, we and each of us bind ourselves, jointly'and severally, and our respective heirs, executors, successors, assigns and administrators, firmly by these presents.

‘‘ Signed, sealed and dated this 26th day of December, A. D. 1923. The condition of the above obligation is such, that whereas, by an order of the Circuit Court of Cook County, sitting in chancery, made on the twentieth day of December, A. D. 1920, in a cause therein pending, wherein Clarence O. Rosen is complainant, and Charles M. Watson and Florence B. Robinson defendants, General No. B-70014, it was, among other things, ordered that Jacob Goldman be appointed Receiver of all of the property, equitable interests, things in action and effects of the defendant Charles M. Watson, except such as are by law exempt, and that he be vested with all the rights and powers of a Receiver in Chancery, upon his filing a bond for the faithful performance of his duties in the penal sum of Two Thousand Dollars ($2000) and the approval thereof.

“Now, Therefore, if the above bounden Clarence O. Rosen shall well and truly pay to the said defendants all damages, including reasonable attorneys’ fees, sustained by reason of the appointment and acts of said Receiver, in case the appointment of such Receiver is revoked or set aside, then the- obligation to be void, otherwise to remain in full force and effect.

Attest: Clarence O. Rosen, (Seal)

H. Roth, ' American Surety Company

Res. Asst. Secy. of New York (Seal)

Approved: Scanlan, Judge By S. H. Griffin

Dec. 28/23 • Res. Vice Pres.”

It appears from the record that the defendant Clarence O. Rosen obtained a judgment in the sum of $2,101, against Charles M. Watson on December 18, 1920, and an execution was issued and returned wholly unsatisfied. On December 20, 1920, Rosen filed a creditor’s bill in the circuit court of Cook county, against Watson, to collect his judgment and joined the plaintiff, Florence B. Robinson in this action for discovery.

The bill alleges that the judgment against Charles M. Watson, return of execution unsatisfied, and, upon information and belief, that Florence B. Robinson had property in her possession belonging to or in which Watson was interested and alleges fear that Watson and Robinson would leave the State. The bill further alleges that a receiver should be appointed forthwith “for all of the property, assets'and'effects of Charles M. Watson, wherever located” and that orders should be entered requiring Robinson to surrender to the receiver “all of the property, assets and effects of every kind and nature in her possession, belonging to or in which Charles M. Watson is beneficially interested.”

It is also alleged that there should be a reference to a master “for the purpose of discovering assets belonging to Charles M. Watson.” The bill then prays that an order be entered appointing a receiver forthwith, and that an injunction against Watson and Robinson be issued enjoining them from conveying the property of Charles M. Watson, and for other relief.

Attached to this bill is an affidavit, which is sworn to by Clarence O. Rosen, in which it is stated that he would be unduly prejudiced unless a receiver were appointed forthwith, and without notice, “for the property and effects of the said Charles M. Watson,” and an injunctional order issued against Watson and Robinson enjoining them from transferring etc., “the property of the said Charles M. Watson.”

The court upon the motion of Clarence O. Rosen entered an order finding that it had jurisdiction to appoint a receiver “for the property, assets and effects of the said Charles M. Watson, wherever situated,” and that an injunctional order should issue restraining Watson and Robinson from transferring the property of said Watson, and that due cause was shown for the appointment of a receiver without notice. It was further ordered that Jacob Goldman be and he is appointed receiver of the property, assets and effects of Charles M. Watson wherever located, and further, that Watson and Robinson be enjoined from transferring the property of Watson, and also that Watson and Robinson forthwith deliver all the property of Charles M. Watson, or in which he is beneficially interested, to the receiver, and that the cause be referred to a master in chancery.

On this same day, December 20, 1920, the complainant’s bond was executed and filed, and the receiver’s bond in the penal sum of $2,000, was also executed and filed by the receiver. Later the same day a further order was entered making the Continental and Commercial National Bank a defendant and enjoining the bank from paying any money or delivering any property to Watson or Robinson.

On January 3, 1921, Florence B. Robinson filed her answer to the creditor’s bill, denying that she had any property belonging to Watson.

At a hearing on December 22, 1920, before the master in chancery to whom the cause was referred for the purpose of discovering assets belonging to Watson, two checks, one in the sum of $2,000, and one in the sum of $20,000, were delivered to the master in chancery by Miss Robinson on a receipt which recited that the checks were received in evidence by the master, and that he was “to hold the same subject to the further order of Hon. Kickham Scanlan, one of the judges of the Circuit Court, or whatever judge may hear the same with reference to the disposition thereof.”

On December 3, 1923, upon the motion of Florence B. Robinson, the defendant as complainant in the creditor’s bill was ordered to file an additional bond for the appointment of a receiver, in the sum of $7,400. The time for filing this bond was twice extended, and the bond was finally executed and filed on December 28, 1923, and is the bond upon which this action is based.

Upon the issues being joined in the instant proceeding, the cause was submitted to a jury, and at the close of all the evidence the court, on the motion of the plaintiff, instructed the jury to return a verdict in her favor and to find the issues for the plaintiff, and assess damages in the sum of $7,400.

The several defendants filed their motions for a new trial and, after judgment, motions in arrest of judgment, which the court denied.

From the order of the court entering judgment for the plaintiff these defendants appeal.

The important question in this case is whether by dismissal of the bill for want of equity as to the defendant Florence B. Robinson, the condition of the bond, which was signed by the defendants, revoked and set aside the appointment of a receiver and justified the recovery of damages by the plaintiff.

As we have indicated, the original proceeding was brought on a creditor’s bill, in which the plaintiff Florence B. Robinson was joined upon the theory that she had property of the judgment debtor. While it is true that during the progress of the hearing Florence B. Robinson’s money, to the extent herein set forth, was taken possession of by the receiver and retained for a considerable length of time, yet as to whether there was any justification for this act, we are not expressing an opinion, for this question was passed upon by the trial court when, upon a hearing, the creditor’s bill was dismissed as to her for want of equity. We are obliged to construe the questions before us and are controlled by the instrument in question, which is the bond executed by Rosen and the surety company, defendants in this proceeding.

As a breach of the condition of the bond, plaintiff alleges that “by reason of the premises, the appointment of the said receiver was revoked and set aside, and the defendants thereupon become liable to pay to the plaintiff . . .,” and our attention has been called to the fact that no other breach is alleged in the plaintiff’s complaint, and the plaintiff, of course, is limited to the breach alleged in her complaint. This court in the case of Derrwaldt v. Moseley, 155 Ill. App. 433, held that without an allegation of a breach of the bond, evidence to sustain a claim is not admissible. The general rule of law is that without an allegation, evidence to sustain facts not alleged in the complaint upon which the plaintiff seeks to recover is not admissible. The appointment of the receiver is not questioned. The receiver was appointed in the creditor’s proceeding wherein the plaintiff in that action alleged to have recovered a judgment against the judgment debtor, Charles M. Watson, for $2,101. Execution was issued and returned not satisfied. This was the basis of the creditor’s proceeding in which the plaintiff in this action was joined as a defendant.

There is no contention, so far as we are able to determine from the briefs, that the creditor’s proceeding was not instituted in compliance with the provisions controlling actions of this character. Defendant Robinson’s contention is that she was made a party defendant for the purpose of obtaining the checks in question and not because the proceeding was improper or the appointment of the receiver erroneous. What she did do was to ask that a further bond be given, which was granted, by the court and the bond upon which she now seeks to recover is the one that was signed by the defendants and filed as required by the order obtained on motion of the plaintiff here.

It is also rather important to consider that the receiver appointed in the creditor’s proceeding was not the receiver of the property of the plaintiff, but was “for all of the property, assets and effects of Charles M. Watson, wherever located,” and that the prayer of the bill was that Watson and Robinson be required to surrender “to the receiver so appointed for the property of said Charles M. Watson, all of the property and assets of said Charles M. Watson in their possession or control.”

So that, by the creditor’s bill, the proceeding was one for the purpose of ascertaining whether or not plaintiff Robinson was in possession and control of property and assets in which the judgment debtor Watson was interested. The question of whether or not she was in control of any property belonging to Watson was passed upon when the court, after a hearing in the creditor’s proceeding, dismissed the bill as to plaintiff, a defendant in that action, for want of equity.

As to the question of the right to recover for violation of the condition of the bond in this case, the court must consider that the liability of these defendants under the bond is contractual as well as statutory.

Plaintiff in this action contends that the sole assets in the receiver’s estate were the property of Robinson, and the dismissal of the bill as to her for want of equity in legal effect set aside the appointment of the receiver. Therefore, she could recover all damages sustained by reason of the appointment and acts of the receiver. We believe this might be true if the condition of the bond were that she could recover for the damages she had sustained by reason of the detention of her money in the hands of the receiver until it was turned over by the receiver to the plaintiff some three and a half years after the court had ordered the receiver to take possession of the money. But that is not the case here, so far as the condition of the bond is concerned. The bond provides that Rosen is to pay the defendants, meaning Watson and Robinson, all damages, including reasonable attorneys’ fees, sustained by reason of the appointment and acts of the receiver, in case the appointment of such receiver is revoked or set aside.

In the consideration -of the question as to the liability of the surety company because of a breach of the condition of the bond, we are confined to whether the court found the bond was breached. It does not so appear in the case here, for the receiver, after the bill was dismissed for want of equity as to the defendant Robinson, continued in office.

The plaintiff in support of her contention cites two cases, Highley v. Deane, 168 Ill. 266, and Link Belt Machinery Co. v. Hughes, 195 Ill. 413. In the latter case the court entered an order in the proceeding instituted by the machinery company that the company pay to the appellee, Deane, who owned the property occupied by this company, the balance of rent that had accrued after crediting the moneys received from the receiver who was appointed in the case. It is to be noted in that case an order was entered by the court, who had jurisdiction of the cause, directing that the machinery company pay to Hughes the balance of rent that had accrued. So that case does not aid us in construing the condition of the bond in this case.

In the case of Highley v. Deane, supra, an order was entered directing that the cost of the receivership be taxed against the complainant who asserted a wrongful claim in the action in which the claim was presented, while in the instant case the plaintiff has received the money that was deposited with the receiver, and the amount she now seeks to recover is for damages, attorneys’ fees and expenses necessary to establish her alleged claim to the money that was in the hands of the receiver.

The bond in question being a contract, the right to recover is limited by the terms of the condition, and unless it appears from the facts in evidence that the terms of the condition of the bond were violated, no recovery may be had.

For the reasons herein stated, the judgment is reversed.

Judgment reversed.

Denis E. Sullivan and Hall, JJ., concur.


text:
    The Prudential Insurance Company of America, Appellee, v. Samuel J. Richman et al., Defendants below. Appeal of Bessie Richman et al., Appellants.
    Gen. No. 39,254.

      Opinion filed November 10, 1937.
    Rehearing denied November 22, 1937.
    Sims & Stransky, of Chicago, for appellants; Franklin J. Stransky and Paul M. Mitchell, both of Chicago, of counsel.'

      Hoyne, O’Connor & Rubinkam and George Gillette, both of Chicago, for appellee; Nathaniel Rubinkam, Norbert B. Tyrrell and William C. MacLean, all of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

The Supreme Court directed this court to consider the consolidated cases entitled: The Prudential Insurance Company of America, a corporation, Plaintiff-Appellee, v. Samuel J. Richman, et al., Defendants. On appeal of Bessie Richman, Fred J. Richman, Daniel G. Marks and Samuel J. Richman, Defendants-Appellants, and The Prudential Insurance Company of America, a corporation, Plaintiff-Appellee, v. Bessie Richman, et al., Defendants. On appeal of Bessie Richman, Fred J. Richman, Daniel G. Marks and Samuel J. Richman, Defendants-Appellants, and bearing Nos. 39,254 and 39,255 in this court.

An appeal was directed to the Supreme Court by the defendants from decrees of foreclosure, one of which was entered in the superior court of Cook county, and bears the number 39,254 in this court, the other decree of foreclosure was entered in the circuit court of Cook county, and bears the number 39,255.

The Supreme Court, in the consideration of the appeals of the defendants, passed upon the question of its jurisdiction to consider the appeals on the grounds urged by those defendants in the case of Prudential Ins. Co. v. Richman, 364 Ill. 234, and said in part: “There is no substantial controversy as to the facts. It is not disputed that the Prudential Company made the loans nor that the defendants received the money, one of which loans was in the principal sum of $150,000, and the other $85,000. Neither is there any disagreement between the parties as to the sole ground upon which the appeal is prosecuted directly to this court rather than to the Appellate Court. In the words of the appellants’ brief, it is claimed ‘that the loans of money .... were ultra vires the appellee and that said notes and mortgages are void and unenforcible because inter alia, the investment powers of the appellee enumerated in its special charter are limited to investments in stocks of certain States and also in bonds secured by mortgages on real estate located only within the State of New Jersey and not elsewhere. ’ In support of this premise it is contended that certain acts of the legislature of New Jersey are void under the constitution of that State, and the alleged unconstitutionality of these acts is the sole reason assigned for a direct appeal to this court and the only ground upon which it is contended that we have jurisdiction of this appeal.”

And further, the Supreme Court said upon the question of ultra vires : “It will be found that one who has received the full benefit of his contract with a corporation cannot defend upon the ground of ultra vires unless the enforcement of the contract is directly prohibited by some positive rule of law or runs counter to good morals or established public policy. In the case at bar we are of the opinion that the constitutional question sought to be raised is immaterial; that no matter which way it might be decided — even if we should assume the power to pass upon it — the result must be the same so far as the defendants are concerned.”

In the consideration of the appeals now pending in this court we are controlled by what the Supreme Court has said, and it is hardly necessary for this court to cite authorities upon the question that this court is without jurisdiction to consider constitutional questions.

From the facts it appears that the suits were instituted by the plaintiff for the purpose of foreclosing two mortgages, which were liens upon- the real estate described in the instruments and situated in the city of Chicago, county of Cook, and State of Illinois. The notes secured by these mortgages were executed by Samuel J. Biehman, one of the defendants. The note secured by the mortgage, the subject of litigation in cause No. 39,254, was executed by Samuel J. Biehman, one of the defendants, on July 29, 1925, to secure a loan made by the plaintiffs to Biehman in the sum of $150,000. This note and the mortgage were executed and delivered in the city of Chicago, county of Cook, and State of Illinois. By the terms of the mortgage the property known as 1055-1067 Argyle street, Chicago, Illinois, was conveyed to secure the payment of the sum so secured. The note and the mortgage sued upon in Cause No. 39,255 were likewise executed by Samuel J. Biehman, one of the defendants, on December 4, 1925, to secure a loan made by the plaintiff to this defendant in the sum of $85,000. This note and mortgage were also executed and delivered in the city of Chicago and State of Illinois, the mortgage purporting to convey real estate known as 6009-6017 Broadway, Chicago, Illinois.

The proceeds of the two loans were paid by the plaintiff to the defendant by plaintiff’s checks delivered in the city of Chicago, State of Illinois, at the office of George H. Taylor Beal. Estate Mortgage Co. upon the execution and delivery of said notes and mortgages. The moneys so loaned and paid by check were the funds of the plaintiff.

Samuel J. Biehman, the defendant and mortgagor, conveyed title to the premises subsequent to executing the mortgages, but prior to the commencement of the suits, to Bessie Biehman, defendant, she acquiring an undivided two-thirds and Daniel G. Marks, defendant, a one-third interest by mesne conveyance^. The other defendant, Fred J. Biehman, has an inchoate right of dower in an undivided two-thirds interest.

By direction of the plaintiff the payments' made by or on behalf of Samuel J. Biehman, under said notes and mortgages securing the payment thereof, were made to George H. Taylor Beal Estate Mortgage Company at the office of said company in the city of Chicago, Illinois, until November, 1927, and thereafter to the First Trust and Savings Bank as the plaintiff’s mortgage loan correspondent.

The plaintiff has been repaid in Cause No. 39,254 by the defendant Samuel J. Biehman, or on his behalf, the sum of $88,090.07, on its loan of $150,000. The plaintiff has been repaid in Cause No. 39,255 by the defendant Samuel J. Biehman, or on his behalf, the sum of $45,974.26 on the plaintiff’s loan of $85,000.

The issues were referred to a master in chancery in the superior court and in the circuit court, and in both causes the master reported his findings of fact and conelusions of law, which were adverse to the defendants on all issues.

The objections of the defendants to the master’s report in both causes were overruled by the master, and the objections, standing as exceptions, were likewise overruled by both courts.

The decrees of the trial courts being adverse to the defendants, the court in both causes after approving the master’s report, ordered a sale of the premises if the defendant Samuel J. Biehman, should not pay the amounts found due under the terms of the mortgages.

A sale was subsequently had, objections were filed by the defendants to confirmation thereof, which objections were overruled by the court, and the report of sale was confirmed and a deficiency decree entered.

One of the points made by the defendants is that the loans of money made by the insurance company to Samuel J. Biehman, the notes to evidence said loans and the mortgages on Illinois real estate to secure the payment thereof, were ultra vires the plaintiff and that said notes and mortgages were void and unenforceable because inter alia, the investment powers of the plaintiff enumerated in its special charter are limited to investments in stocks of certain States and also in bonds secured by mortgages on real estate located only within the State of New Jersey and not elsewhere. The moneys evidenced by the notes secured by the trust deed were received by the defendant Samuel J. Rich-man, and he derived full benefit of his contract with the insurance company. This money so received was used to pay for the improvements as well as for the land securing the payment of the loan, and the defendants cannot defend upon the ground of ultra vires.

The Supreme Court in the instant case announced the rule that “unless the enforcement of the contract is directly prohibited by some positive rule of law or runs counter to good, morals or established public policy, the defense of ultra vires cannot prevail.”

The defense offered by the defendants cannot be maintained for the reason that there is nothing in the record which would indicate that this contract is prohibited by law, or is subject to a violation of good morals or the established public policy in matters of this kind.

The defendants urge the further theory that the privilege licenses issued by the department of trade and commerce, division of insurance, State of Illinois, for the years 1924 and 1925 and for all subsequent years, hmited the plaintiff to the transaction in this State of its appropriate business of life insurance and of the business of health and accident insurance, and that neither of said licenses conferred upon the licensee (plaintiff) either the express or incidental or implied power to engage in money lending activities in Illinois by making loans secured by mortgages on real estate located in Illinois, and that therefore the notes and mortgages involved are void.

The plaintiff insurance company made application in the year 1886 under the Illinois Insurance Act for a license to transact its business of life insurance. Upon such application a license was issued authorized by the proper authorities of the State of Illinois, granting it power to transact its business of life insurance in this State. The following year a further license was issued by the authorities having such power to transact health and accident insurance in the State. The licenses issued by the State of Illinois granted authority to conduct life, health and accident insurance in this State.

Upon the question of making loans in this State by the plaintiff insurance company, we quite agree with what was said in the brief of the defendants that they are not unmindful of the necessity of life insurance companies to invest their funds so as to enable them to meet their obligations to their policy holders, but such necessity like all powers of corporations is subject to regulation and control by the sovereign State to which corporations owe allegiance, and in the case of life insurance companies they must comply with the statutory provisions before engaging in any activities in a foreign State, so the question is: What privileges were granted by the State to the plaintiff when the State granted a license for the transaction of life, health, and accident insurance in the State of Illinois 1

The controlling'factor lies in the provisions of the Insurance Act of the State, by which a foreign corporation is authorized to engage in insurance business within the State. In order that an insurance company may transact a life, health and accident business within the State it must obtain a license for that purpose. Upon application the Insurance Act provides for the necessary steps in the granting of authority to conduct an insurance business. The plaintiff insurance company has been licensed to transact an insurance business in this State, and the question is whether by the provisions of its license the insurance company has authority to invest funds received in its business of insurance, in loans, properly made, secured by notes or trust deeds to secure the payment of moneys received by individuals. The defendant Samuel J. Rich-man did receive from this plaintiff company the moneys evidenced by the promissory notes and the trust deeds to secure the payment upon the real estate described in the deeds and the defendants now seek to question the authority of the insurance company to make the loans in question.

The plaintiff insurance company replies to this contention that the license issued to the plaintiff company authorizing it to transact insurance business in the State of Illinois carries with it the right incidental to that business of investing its funds in the State, and points to the fact it is alleged and admitted in the pleadings that the Prudential Insurance Company of America, is a corporation organized under the laws of the State of New Jersey for insurance purposes. The defendants suggest, however, that it was not chartered for any other purpose, and is not a loan or investment company. At this point we might suggest that insurance companies are excepted from the General Corporation Act of this State, which controls the organization of companies for the purpose of doing business under this Act. The General Corporation Act in force in Illinois at the time of making the mortgages was the act of June 28, 1919, (ch. 32, Cahill’s Ill. Rev. Stats. 1931) entitled: “An Act in relation to corporations for pecuniary profit.” Sec. 1 provides that the Act shall be known as “The General Corporation Act,” and sec. 2 provides: ‘ Corporations may be organized in the manner provided in this Act for any lawful purpose, except for the purpose of banking, insurance, real estate brokerage. . . .” The provisions of the Act relating to foreign corporations are secs. 8, et seq. Sec. 80 provides: “Each foreign corporation organized for pecuniary profit (except banking, insurance, building and loan and surety companies), not now licensed to do business in this State, shall, before it transacts any business dr maintains an office in this State, procure a certificate of authority therefor from the Secretary of State. ...”

By this provision insurance companies are excluded from the operations of the General Corporation Act, and are controlled by the provisions of ch. 73, Cahill’s Ill. Rev. Stats. 1933, relating to fire, marine and inland navigation insurance companies.

Did the plaintiff insurance company have the implied power to loan moneys, such as was exercised, and accept promissory notes and trust deeds, executed by the defendant Samuel J. Riehman, securing the payment of the amounts'? In the case of Metropolitan Life Ins. Co. v. Whitestone Management Co., 77 F. (2d) 255 (C. C. A. Seventh Circuit,) certiorari denied by U. S. Supreme Court, on October 28, 1935, Mr. Justice Sparks said: “Appellants’ first contention is that the loaning of money by an insurance company is a business separate and apart from that of writing insurance, hence, they urge, it was necessary for the Metropolitan Life Insurance Company, before it could legally loan money in Illinois, to secure a license pursuant to the provisions of the Illinois General Corporation Act, notwithstanding the fact that it at all times in question held a license from that State to do a life insurance business. They base their contention upon certain provisions of the General Corporation Act of Illinois, and other unrelated statutes, referred to by them. . . .

“We are of the opinion, however, that the General Corporation Act of Illinois has no applicability whatever to insurance companies conducting an insurance business in Illinois under a license so to do issued by that state, even though such insurance companies loan their money and take security therefor within that state. In In re Peoria Life Insurance Company, 75 F. (2d) 777, decided February 11, 1935, this court held that an insurance company, aside from the mere issuance of policies, has the highest duties and powers to protect its policies and the investments which they represent, and has all incidental powers reasonably necessary to the performance of those duties. We can conceive no higher duty of an insurance company than that of investing its money and taking security, for upon its success in this respect the success of the entire structure depends. We are in accord with the reasoning and conclusions in Bankers’ Life Company v. Horsfall, 48 S. D. 629, 205 N. W. 714; and John Hancock Mutual Life Insurance Company v. Lookingbill (Iowa) 253 N. W. 604. A perusal of the Illinois statute and decisions discloses no tendency on the part of the Legislature or courts to construe the statutes in any manner inconsistent with this holding. The General Corporation Act of June 28,1919, as amended (Smith-Hurd Rev. St. 1931, c. 32 sec. 1 et seq., chapter 32, Cahill’s Rev. Ill. St. 1931, sec. 1 et seq.) was in force when this mortgage was executed. Section 80 et seq. of that act, as amended (Smith-Hurd Rev. St. 1931, c. 32, sec. 80 et seq.) relate to foreign corporations, and except insurance companies from its operation. A reasonable construction of the Illinois Insurance Acts of March 26, 1869, June 18, 1883, June 7, 1889, April 18, 1899, and May 20,1907, as amended, found respectively in SmithHurd Ann. St. c. 73, secs. 205 et seq. 60, 290, 240, 261, Cahill’s Rev. St. 1933, c. 73 pars. 315 et seq., 76, 393, 357, and 375 recognizes the incidental right of a life insurance company, foreign or domestic to invest its funds in Illinois.”

Counsel for the defendants criticise the application of this opinion to the facts as we have them before us. From an examination of the opinion called to our attention, we find that the court in no uncertain terms urged the conclusion that an insurance company organized under the Insurance Act of this State has implied power to invest its money and take security to protect the collection of the money invested, and then goes on to say in effect that the legislature or courts have not construed the statutes in any manner inconsistent with the implied power exercised by the insurance company. After carefully considering this citation, we are of the opinion that it is of persuasive force upon the very questions called to our attention, and are inclined to follow the reasoning adopted by the court in its opinion.

Defendants further contend that the plaintiff has no standing in a court of equity to foreclose the mortgage in question because the plaintiff comes into equity with unclean hands. Two grounds are urged, the first, that the plaintiff was legally incompetent to make the mortgage loans, and that it violated the laws of New Jersey and its charter contract, which prohibited the plaintiff from making the mortgage loans in question and which violation was in direct defiance of the statutes and decisions of the Supreme Court of Illinois. The answer of the plaintiff is that the defense of unclean hands is predicated upon the defense of ultra vires and the license defense raised by the defendants. Upon these two defenses offered, as we have indicated in our opinion, we do not agree with the theory of the defendants.

The second ground urged is that since the commencement of these suits, the plaintiff, in compliance with the provisions of the Insurance Act of the State of Illinois (Ch. 73, Cahill’s Ill. Rev. Stats. 1931) transmitted to the director of insurance of the State of Illinois, annual reports or statements, sworn to by plaintiff’s president and secretary, listing the value of the property covered by the mortgage in Cause No. 39,254 as $427,500, for the years ending Dec. 31,1932 and 1933, and listing the property covered by the mortgage in Cause No. 39,225 as $235,000, for the years ending Dec. 31,1933 and 1934, and it is further urged that the plaintiff invoked the jurisdiction of the trial courts by filing its sworn bills of complaint and by procuring the appointment of receivers for said property in amounts less than one-fourth the values sworn to by the plaintiff in its annual reports filed with the director of insurance.

The value of the premises was a controverted issue of fact, which was before the courts, and the deciding factor in the disposition of said motions is the value of the premises at the time.

The court in each case determined the value of the property to be approximately the amount alleged by the plaintiff in its. bill to foreclose, which in Cause No. 39,254 was $106,450, and in Cause No. 39,255 was $60,000, and that the price bid at the sale for these properties was in Cause No. 39,254, $162,085.20, and in Cause No. 39,255, $107,396.48, a total of $269,481.68. This decision was reached by the court after it considered the evidence offered by the parties upon the question of values. The plaintiff established by the facts the value of the premises at the time of the foreclosure, and there is nothing to indicate the plaintiff company was seeking to obtain relief in violation of the law.

The other question concerns the payment of personal property taxes. Of course, under the law, the situs of the property is the home of the insurance company, which is situated in the State of New Jersey, a fact undisputed, and under these circumstances the property is not properly assessable in this State. Such being the fact, there was no violation of the statutory provision regarding the assessment of the personal property for the purpose of taxation.

The final question before us is whether the court was in error in failing to fix an upset price which would control the bids, to some extent, at the sale.

Since this decree was entered, the Supreme Court in the case of Straus v. Anderson, 366 Ill. 426, held that in a suit to foreclose on the indebtedness of a large apartment building, the court in ordering a resale of the property has power to fix an upset price prior to the sale. In the case of Levy v. Broadway-Carmen Bldg. Corp., 366 Ill. 279, the court held that the holding in the Chicago Title & Trust Co. v. Robin, 361 Ill. 261, is not adhered to, and further upon the question of fixing an upset price, the court said: “Each case must be based upon its own facts, and from this record we are of the opinion that no such gross inadequacy existed in the bid of $50,000, as would warrant the chancellor in refusing approval of the master’s sale.”

The court further stated: “Although the property had been sold, before the panic, for $135,000, the value of real estate was greater then than at the time of the master’s sale.” This reasoning of the court would apply to the instant case. It is true that the report of values filed by the plaintiff insurance company with the insurance department was considerably higher than the amount received at the sale and the values fixed by the court at the time the receiver was appointed. "We feel that the court exercised its discretion in determining whether or not the sale price was a proper one, and we are unable to find from anything in the record that the price received for the property, as indicated in our opinion, was not a fair one. On the contrary, the price received at the master’s sale was higher than the value considered by the court at the time of the appointment of the receiver, and for that reason we do not believe the defendants were injured by failure of the court to consider the petition to fix an upset price.

For the reasons stated the decrees are affirmed.

Decrees affirmed.

Denis E. Sullivan and Hall, JJ., concur.