author: Mr. Justice Boggs

text:
    Oscar Nelson, Auditor of Public Accounts of the State of Illinois, Appellee, v. Home State Bank of Grant Park, Illinois (H. M. Gerdes, Petitioner), Appellant.
    Gen. No. 8,011.
    Opinion filed April 12, 1929.
    Hunter & Minor, for appellant.
    Luther B. Bratton, for appellee et pro se.

   Mr. Justice Boggs

delivered the opinion of the court.

On January 9, 1928, the Home State Bank of Grant Park was closed by the State auditor. Thereupon, a bill was filed in the circuit court of Kankakee county, alleging the insolvency of said bank, and Luther B. Brayton was appointed receiver. A petition was filed by appellant, setting forth that he was the supervisor of the town of Sumner in said county; that he was also the treasurer of the road and bridge fund and of the hard road fund of said town; that on June 10,1927, he deposited in said bank the sum of $7,000, and on November 15, 1927, the further sum of $3,442.25, being moneys which he held as treasurer of said hard road fund; that said deposits were evidenced by two certificates “issued by said bank to your petitioner, and providing for the payment of interest thereon at 4% if left in the bank for three months”; that, as treasurer of the road and bridge fund, he deposited in said bank $161.46; that, as such supervisor, he deposited $262.92; ‘ ‘ that each of said deposits was made as a trust fund by your petitioner in said bank”; that on April 14, 1928, he filed a claim for said funds with the receiver, and that “nó part of said sum has-been paid.”

On the hearing the court found, among other things, that the petitioner, as supervisor and as treasurer of the foregoing funds, had deposited in said bank the respective amounts mentioned in said petition, and found and decreed “that the petitioner is not entitled to a preference as to any of said funds.” To reverse said decree, appellant prosecutes this appeal.

Appellant testified on the hearing that he had been supervisor of Sumner township in said county since 1926; that he was “also treasurer of the road and bridge fund, and of the hard road fund of the township. This pass book I received from the Grant Park bank. . . . When I made the first deposit, I told the cashier I was making the deposit as supervisor, and the money that I then deposited was money belonging to the town of Sumner. There was no part of it my individual property. These entries were made there in the bank, in the pass book and given to me. . The amounts contained in the pass book is the account of the Home State Bank of Grant Park, debtor, in account with Harry M. Gerdes, Supervisor, creditor; none of these funds were withdrawn by check on my personal account. All the money was public money.” On cross-examination he testified: “When I made the deposits, I told them that I was making them as supervisor of the town of Sumner.”

Said pass book was admitted in evidence, and is entitled:

“Home State Bank of Grant Park Grant Park, 111. .
Capital, $150,000.00 In Account With H. M. Gerdes, Supv.
Sumner Twp.”

In reference to the road and bridge fund, appellant testified: “I told them I was making a deposit for the road and bridge fund, as treasurer of the town of Sumner. ’ ’ In connection with the hard road funds, appellant testified: “I got this certificate of deposit from Mr. Griffin, the cashier, when I made the deposit as treasurer of the permanent road fund. I told them ■ I had the bond money that the township had got for the sale of bonds, and I was going to deposit it. This money was obtained by the sale of bonds issued by the highway commissioners for the purpose of building hard roads. This certificate for $7,000 was money that belonged to that fund, and I was the treasurer.”

The two certificates of deposit issued in connection with the hard road fund are as follows:

“70-978 Home State Bank of Grant Park 70-978
Grant Park, 111., June 10, 1927.
“This certifies that H. M. Gerdes, Treasurer Hard Road Fund, has deposited in this Bank the sum of $7,000 and no cts Dollars ($7,000.00). Payable to the order of Himself,
“On the return of this certificate properly endorsed with interest at the rate of 4 per cent per annum for all full months if left 3 months.
Norman Griffin,
Cashier. ’ ’
“70-978 Home State Bank of Grant Park 70-978 Grant Park, 111., Nov. 15, 1927. No. 14.
“This Certifies That
“H. M. Gerdes, Treas. Hard Road Fund has deposited in this Bank the sum of $3,442 and 25 cts Dollars $3,442.25. Payable to the order of Self.
‘' On the return of this Certificate properly endorsed with interest at the rate of 4 per cent per annum for all full months if left 3 months.
Certificate of Deposit. Norman Griffin,
Not Subject to Check.” Cashier.

The only evidence offered by the receiver was the record with reference to the deposits of $7,000 and $3,442.25, and is as follows:

“Home State Bank of Grant Park
Grant Park, 111.
“Time Certificate of Deposit.
No. Date Name Address Amount
11 6/10/27 H. M. Gerdes, Treas. 3 Mos 4% $7000.00
14 11/15/27 H. M. Gerdes, Treas. 3 Mos. 4% 3442.25”

It is contended by appellant that said bank held said above mentioned funds in trhst, and that as to said funds, the same should be preferred.

Said pass book discloses that appellant’s account as supervisor, and his account in connection with the road and bridge funds, were checking accounts. There was no direction given to said bank to keep said funds intact, and there was no agreement by the bank so to do. Said funds passed into the general assets of the bank, and were commingled therewith. This being the state of the record, appellant would not be entitled to a preference.

In People v. Farmers State & Savings Bank, Gen. No. 8,012, post, p. 662, decided at this term of court, we stated:

“While it has been frequently held that money held in a fiduciary capacity by one who places it in a bank can be recovered from the bank by the beneficiary or cestui que trust, where the fund can be traced and identified (School Trustees v. Kirwin, 25 Ill. 73-77; Kirby v. Wilson, 98 Ill. 240-247; Woodhouse v. Crandall, 197 Ill. 104-110; People v. Iuka State Bank, 229 Ill. App. 4-10), the particular fund must be capable of identification. There must be a preservation of the distinctness of said fund. Woodhouse v. Crandall, supra, 111; Wetherell v. O’Brien, 140 Ill. 146-152; Union Nat. Bank v. Goetz, 138 Ill. 127-135. The burden of proof is upon the one claiming a specific lien upon assets in the hands of an assignee for the benefit of creditors. Union Trust Co. v. Trumbull, 137 Ill. 146-179. In Baylor v. American Trust & Savings Bank, 157 Ill. 68, the court says:

“ ‘It has frequently been announced as the law of this State that even in a case where a definite and actual trust fund, which possesses all the attributes of a separate and distinct identity, has been so mixed and mingled with other funds as to render identification impossible, the cestui que trust, in the event of the insolvency of the trustee, is remitted to the position and the rights of a general creditor.’ Citing School Trustees v. Kirwin, supra; Otis v. Gross, 96 Ill. 612; Wetherell v. O’Brien, supra; Union Nat. Bank v. Goetz, supra; Mutual Accident Ass’n v. Jacobs, 141 Ill. 261.”

As to the two certificates of deposit, an examination of the same discloses that the amounts covered thereby were not to be kept intact and returned to appellant, but that appellant was making a deposit, and said amounts, with interest, were to be payable to the order of appellant on the return of the certificate properly indorsed. The relation of debtor and creditor was therefore created by snch deposit. In Mutual Accident Ass’n v. Jacobs, supra, the court at page 267 says:

“Where gold or silver coin, or a package of bills or currency, is received in a bank as a special deposit, the identical money to be returned, the bank has no au. • thority to use the money in its business, — its duty is to safely keep and return the identical money; but where there is a general deposit, the understanding being that a like sum of lawful money should be returned, the bank is permitted to use the money in its general business, and the relation of debtor and creditor is created by the transaction.”

In Hunt v. Divine, 37 Ill. 137, the court had before it the effect of a certificate of deposit similar to those here involved, and at page 142 says:

“To determine the question presented, it must first be ascertained what is the character of the instrument, and as to that, we have only to refer to the case of Bank of Peru, v. Farnsworth, already cited [18 111. 563]. The instrument counted on in that suit was almost identical with the one before us. The court there say, in form, it is a certificate of deposit. But that is not all. It is also an express promise to pay the amount deposited four months from date. . . . The substance and effect of the instrument are precisely the same that they would be, had it declared that for value received the bank agreed to pay Farnsworth the amount in currency on the return of the instrument, with his indorsement, four months from date. If such was the legal effect of the instrument, it is simply a promissory note. No particular form of words is necessary to make a promissory note. Any form of expression containing an absolute promise to pay a certain amount at a time certain, constitutes a promissory note. To the same effect are Laughlin v. Marshall, 19 Ill. 390, and Swift et al. v. Whitney et al., 20 Ib., 144.”

If the certificates here involved are to be given the effect of promissory notes, as held in the foregoing cases, then clearly the position of appellant that said deposits should be held to be a trust fund, for which he would be entitled to a preference, is untenable. The authorities are so numerous in which the Supreme Court has held that deposits of the character here involved create the relation of debtor and creditor and do not entitle the depositor, when a bank becomes insolvent, to a preference over general creditors, that it is not necessary to further cite the same.

It might be observed that the beneficiaries are not attempting to gain a preference; that attempt is being made by appellant, the custodian of said funds.

The trial court properly held that appellant, who was also a director and vice president of said bank, was not entitled to a preference on said claims and its decree is hereby affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    J. Edward Dazey, Appellee, v. Septimus Williams and John F. Egan, Defendants. John F. Egan, Appellant.
    Gen. No. 32,863.

      Opinion filed April 17, 1929.
    Frank H. Repetto and Robert D. Malick, for appellant.
    Henry M. Hagan, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action on a so-called judgment note for $1,500, signed by the defendants, dated October 1, 1927, payable ninety days after date, with interest until maturity at 6 per cent per annum, to the order of Henry W. Graf, and by him indorsed and delivered to the plaintiff before maturity. The judgment by confession was entered and on motion and an affidavit supporting the same of the defendant (appellant John F. Egan), the judgment was opened and the defendants let in to plead, the judgment in the meantime standing as security.

There was a trial before the court, in which there was a finding for plaintiff and the judgment entered bv confession sustained. The defendant Egan moved for a new trial which was overruled, and this appeal prayed and perfected.

The defendant Egan prosecutes this appeal in his own behalf, his codefendant Williams having dropped out of the picture.

In the first place in this class of cases where the judgment by confession is opened and the defendant let in to plead, he is limited in his pleadings to the merits and cannot be heard to urge technical questions of procedure. A great deal of testimony on behalf of Egan was admitted subject to plaintiff’s objections made thereto. There was quite a good deal of it, but in the conclusion to which the court came, he evidently paid no attention to evidence which should not have been admitted. By the court’s finding every objection made by plaintiff was sustained.

The plaintiff proceeded by introducing the note in suit in evidence and rested his case. In Egan’s first point in his brief it is written that “the introduction of the judgment note made a prima facie case for the plaintiff, ’ ’ and cites authority in support thereof. The introduction of the note did make a prima facie case for plaintiff. Upon its face the note was in every respect regular, indorsed by the payee Graf, and delivered to the pláintiff before maturity.

It appears that the defendants Williams and Egan were engaged in a building transaction upon which building Graf did the plastering.

We think that Egan’s own evidence, which was admissible under the rules of evidence and which we must assume is the only evidence the court gave credence to in coming to his decision, is sufficient in itself to sustain the claim of plaintiff upon the note. The note in suit was the renewal of a previous note, and from that incident itself may be inferred a ratification of the transaction.

Egan testified that the note in suit was presented to him for signature when it was made out in favor of Henry W. Graf; that the defendant Septimus Williams brought the note to Egan’s office at 7744 Racine Avenue, Chicago; that Williams told Egan at the time that they were short $1,500 to pay the plastering contractor on the building, and that he had arranged with Graf that if he (Williams) and Egan would sign the note, Graf would accept it in lieu of the $1,500 deficit, and thereupon he immediately signed the note, and that Williams also signed the note at the same time. Egan further testified that Graf told him that he had given his personal check to Williams for $1,500, that he (Egan) signed the note in good faith for the amount said to be due on the building; that he did not intend under the circumstances to pay any of the $1,500 when rightly he did not owe it; that Graf told him at the time that he had the canceled check for $1,500, his own personal check, which he gave to Williams, Egan’s co-defendant, and after that he received notice from the South West State Bank in due course of mail that the note given by defendants for $1,500 to Graf was due and payable at the bank, and also that he received a second notice to the same effect, as he paid no attention to the first, and this suit followed.

The note in suit was dated October 1, 1927, and the note for which it was given as renewal was dated July 1,1927. Egan testified that the note in suit was a renewal of the note given July 1, 1927. According to Egan’s own evidence the note was given for a consideration of $1,500 received from the payee Graf.

There is no evidence in the record that plaintiff received the note in suit after its maturity, and in this state of the record the presumption of law is that he received the note before maturity. The whole case rests upon the weight of the evidence, there being no errors of procedure and no propositions of law or fact submitted to the trial court.

In the condition of this record Egan presents no legitimate evidence overcoming the prima facie case made by plaintiff in the introduction and receiving of the note in evidence. The holder of a note indorsed in blank is presumed to be an innocent purchaser for value before maturity. It was so held in Bates v. Cronin’s Estate, 196 Ill. App. 178. Such is the effect of the Negotiable Instrument Act of Illinois, Cahill’s St. ch. 98, U 79, where it is written that “every holder is deemed prima facie to be a holder in due course . . . ”

The note in suit is a renewal of a note previously given for the same debt July 1,1927, and there is nothing in the evidence calling in question the bona fides of that note or the transaction which culminated in its being given.

There is no reversible error, in the record before us. Therefore the judgment of the municipal court is affirmed.

Affirmed.

Wilson and Ryner, JJ., concur.


text:
    George T. Bennett, Administrator of the Estate of Libby A. Bennett, Deceased, Appellant, v. George E. Bennett, Appellee.
    Gen. No. 32,928.
    Opinion filed April 17, 1929.

      Kremer, Branand & Hamer, for appellant.
    Kirkland, Fleming, Green & Martin, for appellee; David Jacker and William H. Symmes, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action on the case for negligently causing the death of plaintiff’s intestate, Libby A. Bennett, the mother of the defendant, in so managing his automobile, in which his mother was riding by his invitation, that the automobile overturned injuring the mother so seriously that she soon thereafter died as a result of such injuries.

The declaration consisted of three counts, the first charging negligence generally, the second driving at an excessive rate of speed, and the third is a wilful and wanton count. In each count it is charged that plaintiff’s intestate left her surviving* her husband, George T. Bennett, the administrator plaintiff, William W. Bennett, Clarence R. Bennett, and George E. Bennett, her sons, and Mattie Cavanagh, Grace Patterson, Ruth Smith and Janette C. Bartle, her daughters and next of kin, who are still living, and that by reason of the death of Libby A. Bennett, they have suffered and will continue to suffer great damage.

To this declaration defendant interposed a general demurrer, which on hearing* was sustained, and a judgment of nil capiat and for costs entered, from which judgment plaintiff brings the record here by appeal for review.

The declaration does not charge, nor does the demurrer admit, that the defendant is a son of the plaintiff’s intestate, yet it is conceded by both the contesting* parties that such is the relationship. Consequently we will assume the fáct to be as conceded for the purpose of our decision,

The question controlling* the case is whether the father, administrator of his deceased wife, can maintain this action against his son, to whose negligence is attributed her death. In his ruling on the demurrer the trial judge inferentially held that he could not, and plaintiff contends here, as he did in the trial court, that he can.

By the admission that defendant is a son of plaintiff’s intestate, it follows that" if a recovery can be had in this suit, the defendant will have a right to the same proportion of such recovery as will his brothers and sisters. The only case in this state supporting defendant’s contention is Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38, on faith of which the trial judge rested his decision on the demurrer. Plaintiff contends that the instant case is distinguishable from the Bus case, supra.

If this action can be maintained an anomalous condition would be presented. The action is for the use of the next of kin, of which defendant is one. In such circumstances he, in effect, would be suing himself, and it is axiomatic at common law that no one can be both plaintiff and defendant in the same suit. "While such is not technically true in the case at bar, the logical effect is the same, because defendant would share in the distribution of the damages awarded in any judgment against him. Counsel for plaintiff contend that such fact would mitigate the damages recoverable, which as a matter of procedure, it would not, for whatever could be recovered must be distributed among the next of kin, of which in the instant case defendant is one. There is no process of law known to us by which he could be eliminated and damages assessed for the next of kin minus himself, for a gross sum only can be recovered.

In the Hazel case, supra, the court laid down the doctrine applicable in the instant case, in the following language:

“The statute creating a cause of action for the death of a person caused by negligence, in favor of his widow and next of kin, to be prosecuted in the name of his personal representatives, was passed in 1853, and in the first case under the statute which reached the Supreme Court, (City of Chicago v. Major, 18 Ill. 349), Mr. Justice Catón speaking for the court gave a full exposition of the purpose and meaning of the statute. The sole object of the first section, he said, was to create a right of action and to specify in what cases or for what wrongs it might be brought. The purposes of the second section were two: First, to determine by whom or in whose name the action should be brought; and second, to declare for whose benefit the action should be brought or how the money recovered should be disposed of or distributed. The first purpose is declared in such a way as to leave no doubt. . . . The legislature intended that the money recovered should not be treated as a part of the estate of the deceased. It designed to exclude creditors from any benefit of it and to prevent its passing by virtue of any provisions of the will of the deceased. The personal representative brings the action not in right of the estate, but as trustee for those who had a more or less direct pecuniary interest in the continuance of the life of the deceased, and who had some claim, at least, upon his or her natural love and affection. The legislature intended that the fruits of the judgment should be distributed among those to whom his personal estate would descend after the payment of debts and in the absence of a will. . . . The cause of action is entirely statutory and is a single cause of action. There is no separation of the damages to be. assessed by the jury. Their finding is for a single gross amount in an inseparable cause of action, and the contributory negligence of one beneficiary who may be entitled to share in the amount recovered is a defense to the action.” ■

We are of the opinion that the Hazel case settles the law against plaintiff’s contentions. In sustaining defendant’s demurrer to the declaration of plaintiff, the trial judge correctly applied the law. The judgment of the superior court so doing is affirmed.

Affirmed.

Wilson and Rtner, JJ., concur.


text:
    Union Trust Company, Executor and Trustee of the Estate of Luther P. Friestedt, Deceased, Appellant, v. First Trust & Savings Bank, Executor of the Estate of Alice L. Friestedt, Deceased, Appellee.
    Gen. No. 32,953.

      Opinion filed April 17, 1929.
    Cohen, O’Connor & Shanok, for appellant.
    Townley, Wild, Campbell & Clark, for appellee; Charles V. Clark and Frederick D. Carroll, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This cause had its initial appearance in the probate court of Cook county, in which claimant, the appellant, filed a claim against the defendant, appellee. Upon a hearing before the judge of the probate court the claim was dismissed and the claimant took the cause by appeal to the circuit court of Cook county, where the cause was submitted to the trial judge which resulted in a finding in favor of the estate of Alice L. Friestedt, deceased, and against the executor of the estate of Luther P. Friestedt, deceased.

There was a motion for a new trial which was overruled, and a judgment of nil capiat entered against the claimant, the appellant here.

There was a bill of particulars filed in which claimant alleged that there was due to it certain rentals of the dwelling house at 2806 Sheridan Road, Chicago, which Alice L. Friestedt, deceased, in her lifetime occupied under the terms of the will of her deceased husband, Luther P. Friestedt, the total of which rentals was stated to be $11,850, which amount claimant claimed with interest. From the judgment of the circuit court the claimant (appellant here) prosecutes this appeal.

In the circuit court there was a stipulation, which is abstracted in the following words:

“It is stipulated and agreed by and between the parties to the above entitled cause by their respective attorneys that no further proof as to the facts herein stipulated shall be required upon the trial of the claim of the Union Trust Company as trustee, etc., in the above entitled cause. It is further stipulated that the premises referred to in the will of Luther P. Friestedt, deceased, in the provision No. 10 of said will, at the time of the decease of the said Luther P. Friestedt, were improved with a one family residence of three floors and in addition thereto a two story garage having living rooms on the second floor thereof known as 2806 Sheridan Road, Chicago; that after the death of Luther P. Friestedt the said Alice L. Friestedt caused a kitchen sink to be removed from the first floor to the rear bedroom on the second floor and had a small gas range installed in said rear bedroom so that the same could be used as a kitchen; that at the time of the death of the said Luther P. Friestedt there was a stairway in the main hall on the first floor, which stairway led to the second floor; that at the time she installed the equipment above referred to. in the rear bedroom on the second floor, she also caused a beaver board partition to be erected in the main hall on the first floor so that there would be seperate entrances for the first floor and the second floor; that during the month of April, 1923, she rented the second floor and two rooms on the third floor to George DeMet and Nick DeMet and allowed said second floor and two rooms on the third floor to be occupied by the said George DeMet and Nick DeMet and their mother and received from them the sum of $250 each month for said premises and for janitor services in connection therewith from said time and each month thereafter up to and including the month of the decease of the said Alice L. Friestedt, to-wit: November, 1925, and that the said DeMets paid to the said Alice L. Friestedt $8,000 as rent for that portion of said premises so rented and for janitor services in connection therewith and that she took and retained said money and appropriated it to her own use and did not at any time pay over or account for any of said money to' the Union Trust Company as executor and trustee, etc.
“It is further stipulated that the said Alice L. Friestedt rented the garage and the rooms above the same hereinbefore mentioned, to Mrs. J. Ogden Armour and allowed same to be occupied by the automobile of' and the chauffeur and his family,- in the employ of Mrs. J. Ogden Armour and that Mrs. J. Ogden Armour paid to the said Alice L. Friestedt as rental for the said garage and the rooms above the same, commencing with the month of December, 1922, and continuously each month thereafter up to and in-eluding the month of the decease of the said Alice L. Friestedt, a monthly rental of $100, together with an additional $10 per month for janitor services in said garage building; that Mrs. J. Ogden Armour made her checks payable to Mrs. Friestedt and that said checks were deposited to the account of Mrs. Friestedt above mentioned; that the said Mrs. J. Ogden Armour paid to the said Alice L. Friestedt for said garage and rooms the sum of $3,500 and $350 for janitor services during said period, all of which money was kept and appropriated for her own use by the said Alice L. Friestedt and not accounted for.
“It is further stipulated that the said Alice L. Friestedt until her death at all times resided on the said premises; that she was in actual occupancy and possession of all of the said premises during all of the said time, excepting those parts of the premises rented as above set forth; that from the time of the death of the said Luther P. Friestedt and until her death, Alice L. Friestedt paid all taxes, general and special; paid fire insurance and kept said premises, including all buildings thereon in habitable condition, including reasonable and adequate decorating and repairs.
“It is further stipulated that this stipulation shall not limit either of the parties to any other proof in regard to said claim of the Union Trust Company as executor aforesaid or the defenses against said claim, but is made simply for the purpose of eliminating the bringing in of documentary evidence and witnesses to testify in regard to the matters above set forth.”

There was also received in evidence a copy of the bill of complaint filed in the circuit court of Cook county, which was a bill brought by the appellant against the appellee for a construction of the will of Luther P. Friestedt, deceased. A copy of the decree in said cause was likewise received in evidence as well as the last will and testament of Luther P. Friestedt, deceased. The provision of said will there sought to be construed and which is pertinent to the instant case is the tenth paragraph of subsection A of said will, wherein it is provided that:

“Said trustee shall also set aside and give to my said wife the use as a residence of the home occupied by me at the time of my decease, provided, however, that such use shall be personal to my said wife and not transferable or assignable and that if my said wife shall elect not to reside in said home and shall so notify the trustee in writing, the trustee shall thereafter hold said property free of any further use of my said wife and as part of the general trust estate in its hands and to be distributed and divided as provided herein with respect to such general trust estate.
“All taxes, general or special, and insurance upon said residence and all repairs necessary to keep such residence in habitable condition, inclusive of reasonable and adequate decorating and repairing of the same from time to time, shall, during the time the same is used by my said wife as a home, be paid by her. If my said wife shall fail to live in such residence for a continuous period of six months, such failure shall be considered equivalent to written election by her, as aforesaid, not to reside in such home and the trustee shall thereafter hold said property free of any further use of my wife, as aforesaid.”

The advice of the court was asked regarding certain taxes upon the Sheridan Road property, as to what part of the same should be paid by Alice L. Friestedt, etc. A question has been raised with respect to the use and occupancy of said Sheridan Road property by said Alice L. Friestedt, as to whether she may, without violating the terms of said will, lease or rent single rooms or parts of said residence so long as she maintains her residence, there and as to whether she may without violating the terms of said will be held to live in such residence for a continuous period of six months if she shall within such period absent herself therefrom temporarily for travel, for health or recreation so long as she shall retain control and continue possession by a servant or servants for the purpose of a residence therein.

The decree recites the tenth paragraph of the will, and then finds that “it was not the intent of said decedent to authorize or give any power to said Alice L. Friestedt to part with or that there should be subject to alienation or assignment voluntary or involuntary, any right or claim to the use of said property, whether by sub-lease or otherwise, but the court finds that the only conditions which said Alice L. Friestedt is required to fulfill to maintain her right to the use of said property are the payment of all taxes, general or special, and insurance upon such residence, and for all repairs necessary to keep said residence in habitable condition, inclusive of reasonable and adequate decorating and repairing of the same to be paid by her and such maintenance as aforesaid of her residence therein.”

The decree further found that Alice L. Friestedt, widow of the deceased, ever since his death continued to reside on the premises, and found that the said Alice L. Friestedt, may elect to spend portions of any six months period away from the premises in visits and travel, so long as she retains possession thereof through servants or otherwise, and so long as her absence therefrom does not extend for a continuous period of six months or longer.

The claimant argues that the decree under the bill to construe the will of Luther P. Friestedt, deceased, denied the widow the right to sublet any part of the property devised to her for life, and defendant meets this contention by asserting that on the contrary under the will the widow had the right to sublease part of the property on condition that she maintained her residenee there and complied with other conditions conferring the life estate, and insists that the decree confirmed that right.

The bill to construe the will contains the following:

“A question has been raised with respect to the use and occupancy of said residence property by the said Alice L. Friestedt as to whether she may, without violating the terms of said will, lease or sublet single rooms or parts of such residence so long as she maintains her residence there . . . .”

The court answered this question in the decree as follows:

. . the court finds that the only conditions which said Alice L. Friestedt is required to fulfill to maintain her right to the use of said property are the payment of all taxes, general or special, and insurance upon such residence, and for all repairs necessary to keep said residence in habitable condition, inclusive of reasonable and adequate decorating and repairing of the same to be paid by her and such maintenance as aforesaid of her residence therein.”

It is not to be controverted from the proofs but that Alice L. Friestedt during all of her lifetime met all the foregoing conditions. We have no business to enlarge or detract from that provision of the decree in this proceeding. All of the parties sought a construction of the will creating a life estate in the Sheridan Eoad property. By the terms of that decree all parties to it are bound and all the parties now before the court were parties to that litigation and the resulting decree. We think that any contentions of claimant contrary to the foregoing findings are impotent to destroy the findings of the decree in this regard. The language is plain and permits of the interpretation which the decree placed upon the clauses of the will then in controversy regarding the rights of the widow in the Sheridan Eoad property.

The conditions set forth in the decree were the only conditions which the widow was required to perforin to maintain her right to the use of the Sheridan Road property during her life time, and she having fulfilled them all, her rights enjoyed thereunder during the continuance of her life estate in the property are not subject to attack in the collateral proceeding engendered by this suit. There is nothing in the decree, either in apt terms or by construction, which can be held to deny to the widow the right to sublease any portion of the Sheridan Road property not actually occupied by herself. The intent of the decedent, Luther P. Friestedt, regarding the life estate vested in his widow upon condition is not open to attack de hors the decree or the provisions and findings therein recited. We think it clear that the parties by their conduct put their own construction not only upon the decree construing that part of the will vesting a life estate in the Sheridan Road property on conditions therein named in the widow, but also their construction upon the provisions of the will creating such life estate. The decree construing the will was entered July 13, 1923, and claimant seeks rents for that portion of the Sheridan Road property collected by the widow from December, 1922, to November, 1925. We must assume that during all this time the parties in interest knew of the occupation of the Sheridan Road property, and that they were chargeable with knowledge that a portion of the same had been sublet and that rentals had been collected by the widow therefor, and not until the widow had been dead more than a year, and the time for filing claims had expired by limitation saving only two days, did the claimant file its claim for such rentals. For a period of nearly three years during the life time of the widow the interested parties made no claim. If their contentions now made were well taken, they could at any time during the foregoing three years have proceeded under the will in an attempt to terminate the widow’s life estate therein for a so-called claim of a breach of the conditions under which she held the estate. The parties are estopped by their own conduct from asserting rights de hors such conduct.

It is apparent to this court that the rights of the widow to sublet a portion of the Sheridan Road property, while actually occupied by her, were settled by the decree in the equitable proceeding to construe clauses of the will of the decedent relating thereto, and all parties in interest are estopped from thereafter contending for a different construction. There is no excuse for claimant having waited for several years until the death of the widow in order to make claim for rentals which were collected under conditions impliedly sanctioned by the actions and conduct of all the parties in interest.

Henderson v. Harness, 176 Ill. 302, is analogous in principle to the instant case, wherein the bequest of a life estate was in the following language:

“My said son, Milton Harness, to have and to hold the same during his natural life, he to have the full use and occupation of the same if he desires it, provided he shall pay all taxes and assessments levied against said land before sale for taxes, and that he shall not sell nor in any way encumber said realty during Ms lifetime.”

The son took possession under the devise and thereafter judgment creditors levied upon the real estate which was sold under execution. The court held that such sale did not constitute a violation of the provisions of the will, and announced the following rule of construction :

“The limitation made by the devise as a restriction on the power of alienation is to be construed in the same manner as a condition in a lease against assignment, and it is well settled that an assignment by operation of law is not a breach of such a condition. ’ ’

A subletting of a portion of demised premises is not a violation of a covenant against assignment. It has been uniformly held that a covenant in a lease against assigning is not violated by subletting. 35 C. J. 982; Sinclair v. Sinclair, 224 Ill. App. 130, McCarthy v. Handley, 222 Ill. App. 604.

In Den ex Dem. Bockover v. Post, 25 N. J. Law 285, it was said:

“It is perfectly well settled that underletting is not a violation of the covenant not to assign . . . Crusoe v. Bugby, 2 W. Bl. 766, S. C. 3 Wils. 234; Jackson v. Silvernail, 15 J. R. 278; Jackson v. Harrison, 17 J. R. 66; Adams on Ej. 177.”

In 1 Taylor on Landlord & Tenant, 9th ed. 509, the rule is stated as follows:

“If therefore, the lessee covenants not to assign, transfer, set over, or otherwise do or put away the lease on premises, this does not prevent him from subletting.”

In 1 Tiffany on Beal Property, 161, it is stated:

“A stipulation against assignment is not violated by a sublease.”

Whatever rights claimant might have must arise from the will of Luther P. Friestedt, and there is naught in that document which would entitle claimant to any rent which was received by the widow from subleasing part of the Sheridan Boad property. The only remedy which could have been open to the parties in the lifetime of the widow would have been to terminate the life estate in pursuance of the provisions of the will, and that until such life estate was so terminated, the widow was entitled to retain all of the rents collected from her subtenants.

In 21 C. J. 930, the text writer summarizes the authorities in the following language:

“The effect of the nonperformance or breach of a condition subsequent is to render the estate granted liable to forfeiture, at the option of the person entitled to take advantage of such breach, unless the condition is one which the law will not enforce, in which case the estate will become vested absolutely in the grantee. To have any effect upon the estate the condition must be taken advantage of by those to whom the right so to do belongs; . . . Estates upon condition subsequent have until defeated the same qualities and incidents as though no condition was annexed thereto . . .”

It is therefore clear that the claimant or the remaindermen under the will of Luther P. Friestedt, deceased, not having taken any steps during the life time of Alice L. Friestedt to terminate her estate under the will, it remained in full force until the time of her death, and such being the situation^ she had the right to retain all rents collected by her, in which neither the claimant nor the remaindermen have any interest or claim.

Finding no reversible error in the record before us, the judgment of the circuit court is affirmed.

Affirmed.

Wilson and Ryneb, JJ., concur.


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    William Lester Collins, by his guardian and next friend, Helen Collins, Plaintiff in Error, v. Peters Real Estate Improvement Corporation and Albert Despres, Defendants in Error.
    Gen. No. 32,962.

      Opinion filed April 17, 1929.
    P. R. Boylan, for plaintiff in error.
    Harold L. Feigenholtz, for defendants in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

In this action the plaintiff, William Lester Collins, a minor, by his next friend and mother, Helen Collins, brought this suit in an attempt to recover $300, paid to defendants under a contract to buy a certain house and lot in Villa Park, Cook county, Illinois. Plaintiff minor disaffirmed the contract on the ground of his minority and demanded the return of the earnest money, $300, by defendants, which they refused. There was a trial before court and jury. At the close of plaintiff’s case defendants moved for an instructed verdict in their favor, which the court granted, and the jury returned a verdict accordingly, upon which a judgment of nil capiat and for costs was entered, to which the usual objections and exceptions were made and the case is before us on plaintiff’s appeal.

There really is but one question material to the issues here involved, and that is, was the plaintiff a minor at the time his mother executed the contract and paid $300 as earnest money thereon. The contract recites that he is a minor, his mother testified that he was, and the fact was further proven by a certificate from the Department of Health of the City of Chicago, and the minor also so testified. ■ We will therefore assume from the fourfold proof that the fact of plaintiff’s minority is established. Another fact in evidence, uncontradicted, is that the $300 was plaintiff’s money earned by him.

In the complaint of plaintiff he averred that he dis-affirmed the contract and demanded the return of the $300 by reason of his minority. The questions arising under the contract, saving only the demand for the return of the earnest money to plaintiff, are of no moment. Being a minor his contract did not bind him, and he had a right to demand the return of the money paid by him thereunder. There being no dispute as to the minority of plaintiff, and that the $300 paid was his money, the court erred in instructing’ a verdict against him and entering a judgment thereon.

The contract was an executory one and the minor had a right to disaffirm it during his minority or thereafter. There is, in law, no distinction between executed and executory contracts so far as the right of disaffirmance is concerned.

In Chicago Mut. Life Indemnity Ass’n v. Hunt, 127 Ill. 257, the court made use of the following language:

“If an infant performs the conditions prescribed in the certificate, he, the same as an adult, becomes entitled to the benefits thereby secured. If he fails to perform, his membership ceases, and that is all. We do not assent to the view that, as a further consequence of his disability, he may recover back the dues and assessments he may have already paid. ‘If an infant advances money on a voidable contract which he afterwards rescinds, he cannot recover this money back, because it is lost to him by his own act, and the privilege of infancy does not extend so far as to restore this money unless it was obtained by fraud. ’ 1 Parsons on Contracts, 332.”

In Wuller v. Chuse Grocery Co., 241 Ill. 398, the court made the following comments upon the foregoing dicta:

'‘ This language of the court used in argument was not essential to the decision and the quotation from Parsons is at variance with authority and the doctrine now accepted. If the fact that the payment of money 1 upon his contract was voluntary precluded its recovery, the right to avoid the contract would be no protection to an infant against his inexperience and the wiles of swindlers and cheats. Such voluntary payment may be recovered upon the avoidance of the contract. (Shurtleff v. Millard, 12 R. I. 272; Robinson v. Weeks, 56 Mo. 102; Ruchisky v. De Haven, 97 Pa. St. 202.) The consideration, or such part of it as remains in the possession or control of the minor, must be returned, but if he has lost or expended it, so that he cannot restore it, he is not obliged to make restitution. (Craig v. Van Bebber, 100 Mo. 584; Reynolds v. McCurry, 100 Ill. 356.) Contracts concerning personal property and executory agreements may be avoided by the infant either during or after his minority. (Childs v. Dobbins, 55 Iowa 205; Chapin v. Shafer, 49 N. Y. 407; Robinson v. Weeks, supra.)

Plaintiff since starting this action has reached his majority. He can therefore on his own motion further prosecute this suit in his own name. He may then, if he sees fit, repudiate the contract and seek a judgment for the amount which he paid to defendants.

The judgment of the municipal court is reversed and the cause is remanded for a new trial in accord with the views in this opinion expressed.

Reversed and remanded.

Wilson and Ryner, JJ., concur.


text:
    Henry Gottschalk, Appellee, v. Village of Posen, Appellant.
    Gen. No. 33,051.
    Opinion filed April 17, 1929.
    Rehearing denied May 1, 1929.
    W. Otto Wielgorecki, for appellant; Burrell J. Cramer, of counsel.

      Frank Johnston, Jr., and Dwight McKay, for appellee; Edward I. Rothbart, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The action is assumpsit. The declaration consists of the common counts and one special count declaring upon seven special assessment vouchers of defendant given for the laying of certain sidewalks in the village of defendant totaling $7,242.20, with interest thereon claimed at the rate of six per cent per annum. An affidavit of claim supporting the special count was filed with the declaration. Defendant interposed a plea of non assumpsit, together with a notice of special matter particularly setting forth such matter. Defendant likewise filed an affidavit of merits. Plaintiff made a motion to strike the affidavit of merits and plea from the files, and that motion as to the affidavit of merits was sustained and leave granted to defendant to file am amended affidavit of merits within five days. On January 11, 1928, defendant filed an amended plea of non assumpsit, together with a notice of special matter relied upon as a defense, and together with an affidavit of merits.

On June 19, 1928, by agreement of the parties, counsel for the respective parties waived the jury and submitted the cause to the court for trial. The cause was tried on June 29, 1928. On June 19, 1928, plaintiff’s attorney in open court stated that he intended to move to strike the amended affidavit of merits from the files when the cause was reached for trial on June 29th, 1928. In the midst of the trial on June 29, 1928, plaintiff made a motion to strike the second amended affidavit of merits from the files for insufficiency. That motion the court .sustained, and ruled defendant to file an amended affidavit of merits instanter. Thereupon defendant asked for additional time in which to prepare and file a new affidavit of merits, and asked for a continuance of the cause to enable him to do so. These motions were denied, to which defendant duly excepted. Counsel for defendant protested that he was unable to file a new affidavit of merits unless given sufficient time to do so, but the court did not heed such protest and request, but continued to try the case on the theory that defendant was in default. The court heard the evidence and entered a finding for the amount of the claim with interest at 5 per cent amounting to the sum of $8,690.64. Defendant made a motion for a new trial, but at the suggestion of the trial judge changed it to a motion to vacate the assessment of damages. That motion was denied. Defendant thereupon moved in arrest of judgment, which was likewise denied, to each of which rulings of the court denying said motions defendant duly preserved its exceptions. From the foregoing judgment defendant prayed and •perfected this appeal.

We do not pass upon the merits of the cause, but dispose of the same solely upon the abuse of judicial discretion in the trial court’s ordering defendant to file a new affidavit of merits instanter while the cause was on trial, and in denying a motion for a continuance in order to give defendant’s counsel time in which to prepare a new affidavit of merits, and in proceeding with the trial as in cases of default.

The plaintiff argues for affirmance that “the only question in the case open for review is the question whether the trial judge abused his discretion in requiring the defendant to file a third affidavit of merits instanter. ’ ’

In the state of the record we find no cause to disagree with plaintiff’s counsel in such contention. It was held in Harris v. Willis, 209 Ill. App. 401, that the acts of a trial judge will not be disturbed unless it appears to the court that the judge has abused his discretion.

In the first place the rules of the superior court require that all motions, not of course, shall be made in writing. (See Buie 22). A motion to strike an affidavit of merits from the files is not a motion of course.

There is no order striking the plea or of default found in the record except in the preamble to the order, in which the findings and judgment appear. It is as follows:

“This cause coming on to be heard upon the plaintiff’s motion heretofore entered herein to strike defendant’s affidavit of merits heretofore filed herein after arguments of counsel and due deliberation by the court said motion is sustained. It is therefore ordered that the defendant be and it is hereby required to file its second amended affidavit of merits herein instanter, and on motion of plaintiff’s attorney it is ordered that the plea heretofore filed herein be and the same is hereby stricken out, and the default of the said defendant be taken and the same is hereby entered herein of record, for failure to file its second amended affidavit of merits herein. ’ ’

Then follows the finding of the court and the judgment.

It is true that on June 19, 1928, the attorney for plaintiff announced in open court his intention to move to strike -the amended affidavit from the files when the cause would be called for trial on June 29, 1928. If the motion had been in writing to strike the affidavit of merits, then there would have been something in the record which defendant could have brought before the court for disposition, but in the absence of the motion in writing there was nothing before the court. The intention to make the motion was insufficient. The plaintiff in the ordinary course of procedure should have made his motion in writing to strike the affidavit of merits, and given notice thereof to counsel for defendant so that the same might be disposed of before the trial of the cause was entered into. In other words, it is the proper practice, and the only ethical practice, to settle the issues before the trial of the case is entered upon. It may be that on the morning of the entering into the trial of the cause, the issues might have been settled on the motion of plaintiff, but he refrained from making any such motion and waited until the case had proceeded on its course to trial, and we judge from the record that considerable time had elapsed from the entry into the trial before the motion to strike out the affidavit of merits was made. This was contrary to precedent and the ordinary conduct of the trial of a cause. For the court to entertain the motion, at the time it did, and to enter an order striking the affidavit of merits from the files and an order of default, was a gross abuse of judicial discretion. How could defendant prepare an affidavit of merits when the court was pushing along the trial, regardless of counsel’s request for time in which to prepare and file the affidavit required by the court’s orders? It was simply impossible. The plaintiff is chargeable with laches in the first instance in not making his motion in writing and bringing it to the court for disposition before the day when the cause was set for trial and the trial entered upon. When the trial of the cause proceeded the issues' were not then settled according to the contention of defendant, but as a matter of fact, there being no written motion to strike the second amended affidavit of merits from the files, the cause should have proceeded to trial upon the issues made by the declaration and the pleas of defendant, and its affidavit of merits then on file.

Counsel argued that in Harris v. Willis, supra, it was held that a refusal to permit the filing of a third affidavit of merits and statement of set-off cannot be said to be an abuse of discretion. While that is true, it has no application to the conditions of the case at bar. If the trial judge had refused to allow another amended affidavit of merits to be filed, then the point decided in the Harris case, supra, would be relevant, but in the condition of the record, it is entirely irrelevant. It was an abuse of the sound discretion reposed by law in the court to require the defendant, in the midst of the trial, to file another affidavit of merits instanter without giving counsel the slightest opportunity to comply with the order of the court. Counsel for plaintiff argue that “instanter” in a legal sense does not mean immediately or “then and there”; that it means, according to well settled rule, that the document should be filed within the same day, but the trial court put his own construction upon the meaning of the word “instanter” as applied to the instant case before him for trial. He ruled that it meant, in the dictionary sense of the word “instanter,” at once, and proceeded to default the defendant because he did not go instanter file the amended affidavit, which he was ruled to do instanter. There was no chance given counsel for defendant to prepare and file the affidavit during the trial of the cause or before- the clerk’s office had closed for the day. The trial was all over and the judgment entered some time before the court’s hour of adjournment had arrived. Thé action of the trial judge was not only an abuse of the discretion which the law reposes in him, but a denial of justice to the defendant.

The defendant has been denied by the action of the trial judge a fair trial, and for so doing the judgment of the superior court is reversed and the cause is remanded for a new trial with directions to proceed in such new trial in accordance with the views herein-above expressed.

Reversed and remanded with directions.

Wilsoh and Ether, JJ., concur.


text:
    Matthew Wawrzyniak and Josephine Wawrzyniak, Appellees, v. Morris Kohl, Appellant.
    Gen. No. 33,068.
    Opinion filed April 17, 1929.
    Rehearing denied May 1, 1929.
    George N. Kotin and James B. Cashin, for appellant.
    Pines, Morse & Stein, for appellees; Clarence T. Morse, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action of the first class in the municipal court, in which plaintiff on May 23,1928, filed, by leave of court, a second amended statement of claim, supported by an affidavit. On the 25th day of May, 1928 (the motion upon which the order was entered not being found in the record) the court entered the following order:

“On motion of the defendant heretofore entered herein to strike amended statement of claim from the files of this cause, and the court being fully advised in the premises, overrules said motion.”

To the second amended statement of claim no pleading of defendant is found in the record. No order is found in the record permitting either of the two former affidavits of merits filed to stand or be regarded as an affidavit of merits to the second amended statement of claim. The next order found in the record is of June 7th, 1928, in which the cause is submitted to the court for trial without a jury. The trial was entered upon and continued until June 8, 1928, when the court entered a finding of the issues against the defendant Morris Kohl, and assessed plaintiffs’ damages at the sum of $2,500. Motions for a new trial and in arrest of judgment were made by defendant and both overruled by the court, and this appeal prayed, allowed and perfected.

The action is grounded on the failure of the defendant to perform an alleged oral agreement to consent to the assignment of a written lease made between the plaintiffs, as lessees, and the defendant, as lessor. The second amended statement of claim alleges the execution of the lease, dated September 1, 1926, made by defendant as lessor to the plaintiffs as lessees, whereby a term of ten years was granted at a fixed rental of $400 per month of a six-flat building numbered 4051-4053 Kenmore Avenue, Chicago, to be occupied as a roóming house. Among other covenants it was provided that Morris Kohl, the lessor, would give his consent in writing for the assignment of said lease by plaintiffs upon being furnished with proof that the proposed assignee was a white person of equal responsibility to the plaintiffs with reference to moral character and financial responsibility, and on further condition that at the time of such assignment a fee of $25 would be paid to defendant for giving his consent thereto.

Plaintiffs averred that they had personal property in the demised premises of the value of $10,000, and that they had built up a profitable business, which in the month of October, 1927, had a good will value of $10,000; that plaintiff Josephine Wawrzyniak was in bad health; that her husband was a tailor, and that they were unable to run the business successfully, and that on October 17,1927, plaintiffs requested of defendant his consent to the assignment of the lease to one William Reinecke claiming that he fulfilled the conditions of the lease as to color, financial condition and moral responsibility, and offered to pay defendant $25 for his consent to such assignment; that on October 24, 1927, defendant agreed verbally to accept said Reinecke as such assignee of plaintiffs and that defendant was offered and accepted $10 on account of the $25 fee for such consent, and that plaintiffs in faith of the foregoing entered into an agreement in writing with said Reinecke to sell him all of the assets and good will of the leasehold and their interest in the lease for the sum of $5,000; that defendant upon being notified of the agreement between plaintiffs and Reinecke agreed to meet plaintiffs with Reinecke at the office of defendant’s attorney, and that plaintiffs could then and there assign the lease to Reinecke and consummate the agreement if defendant would give his consent in writing to such assignment and accept Reinecke as assignee of the lease; that the parties met at the office of defendant’s attorney on November 1,1927, and Reinecke was ready, willing and able to consummate his purchase, but defendant refused to consent in writing to the assignment of the lease; that by reason of defendant’s refusal to give his consent to the assignment of the lease to Reinecke, plaintiffs lost the benefit of the profit of their contract with Reinecke, and that because plaintiffs were unable to run the rooming house business they had to employ certain persons to do so for them and they lost large gains in profits which they would have otherwise received, to their damage in the sum of $20,000.

It was further averred in said statement of claim that by agreement between plaintiffs and defendant, the defendant waived the requirement of the lease that the proposed assignee was to be a white person of equal responsibility to plaintiffs and the payment of $25, and in consideration therefor plaintiffs agreed to pay $1,200 to defendant as security for the performance of the covenants of the lease and of the payment by plaintiffs in advance of the maturity thereof an indebtedness from plaintiffs to defendant in the sum of $1,650 evidenced by mortgage notes secured by chattel mortgage on the furniture in the demised premises. It was also understood that the defendant would give his consent to the further assignment of the lease by Reinecke without Reinecke being required to obtain defendant’s consent in writing thereto; that the agreement between plaintiffs and defendant stated that the $1,200 was to be forfeited as liquidated damages, although there is no proof of any agreement to that effect. It appears that on the morning when plaintiffs claimed the transaction was to have been completed, defendant made other exactions with which plaintiffs declined to comply, and the consent of the defendant to the assignment of the lease to Reinecke was refused, and the matter there ended.

Edward Gr. Berglund testified for defendant that he was an attorney and during the months of October and November, 1927, represented defendant with reference to the transaction in dispute; that he was present at the conversation between defendant and plaintiffs in the fall of 1927; that he had several conferences with plaintiffs and defendant and Mr. Kandlik; that he dictated an agreement which he submitted to the parties ; that Mr! Kohl, the defendant, said he would not sign the agreement because it gave plaintiffs the right to pass upon any subsequent assignee and that it did not give him that right, or words to that effect; that ■ that was not the kind of agreement he wanted; that defendant should have the right to veto any subsequent assignment; that he told defendant he was getting the chattel mortgage paid off and certain other matters and Mr. Wawrzyniak still remained liable on the lease and that he (the witness) did not think it was reasonable to insist on putting that condition in, and defendant said he would insist on it; that the witness took exception to the fact that defendant, his client, did not comply with his advice in the matter, and therefore the relations of attorney and client between himself and defendant were severed, and he gave defendant back all of his papers; that defendant on being pressed to give his consent to the assignment, said that he would give his consent upon the chattel mortgage being paid in full; they then discussed the agreement and defendant still said he wanted the right to pass upon any subsequent assignee whoever it be, and would not heed plaintiffs’ request that it be otherwise, saying he was landlord and wanted also to be able to pass on any subsequent assignee even if he did consent to Reinecke; that it was a difference of opinion between the witness and the defendant, his then client, in view of what he was getting on this lease that he ought to waive that; that was -his opinion.

The witness testified on cross-examination that he drew the agreement and presented it to the parties' on November 1, 1927, when all the parties were present ; that it would substantially carry into effect the general agreement of the parties and as to what he thought was fair and reasonable to recommend to any client to execute for the transfer of the lease.

It is clear from the foregoing that the refusal of defendant to sign the agreement which Berglund had prepared, and to consent in writing to the assignment of the lease by plaintiffs to Reinecke, which resulted in the disagreement of the parties culminated in this suit.

The controlling question is one of law as to whether the lease between the parties regarding its assignment or any of its other provisions may be changed or modified by any verbal agreement between the parties, or whether it is a fast and firm principle of law that none of the provisions of the lease can be altered or varied (the lease being under seal) by parol or by any verbal understanding.

Plaintiffs contend that defendant does not come into court with clean hands. However this may be, it is sufficient to say on this point that the doctrine of clean hands is one wholly cognizable in equity, and is a stranger to the common law.

The evidence malíes it clear that the agreement of the parties was that when the minds of the parties met upon all of the terms thereof it should be reduced to writing. While it is true that the defendant at the subsequent meetings of the parties increased his exaction as to the terms upon which he would consent to vary the provision in the lease regarding the necessity of defendant agreeing in writing to consent to an assignment of the remaining term of the lease to the nominee of plaintiffs, and while it may be that defendant attempted to exact more from plaintiffs for the concession than he in honesty ought in accord, with the view of his attorney, yet we are not permitted to pass upon this contention on the morals of the situation, but upon the law governing the transaction. Defendant’s counsel had a right to cease to advise his client for the good enough reason that he refused to be guided by his advice. That was counsel’s privilege, but it did not change the situation regarding the law applicable to the situation. However, Berglund’s testimony, in itself, is sufficient to establish the fact that the proposed agreement varying the terms of the written lease, etc., was to be in writing.

It is the law that a contract under seal, such as the lease in the case at bar, can neither be modified nor changed by an agreement resting in parol. Barnett v. Barnes, 73 Ill. 216.

In Baltimore & O. & C. R. Co. v. Illinois Cent. R. Co., 137 Ill. 9, it was held that it is not competent, either at common law or under the law of this State, to modify or change the terms of a lease or articles of agreement under seal by proof of a subsequent parol understanding or agreement. And as applied to the intention of the plaintiffs in the instant case, the rule is stated in Baltimore & O. S. W. R. Co. v. People ex rel. Allen, 195 Ill. 423, as follows:

“Where the parties make the reduction of the agreement to writing, and its signature by them, a condition precedent to its completion, it will not be a contract until that is done. And this is true although all the terms of the contract have been agreed upon.”

The only difference in the statement of the foregoing principle of law as contrasted with the instant case, is that the terms of the parol agreement, which was to have been reduced to writing, were not agreed upon by the parties, and the minds of the parties upon the terms claimed to have .been agreed upon by the plaintiffs never met in finality. As well said in Nolan v. O’Sullivan, 148 Ill. App. 316:

“If it was the understanding and intention of the parties to draft and sign a written contract covering their oral agreement, the oral agreement, without being reduced to writing and signed, is not binding and enforceable.”

In Scott v. Fowler, 130 Ill. App. 172, it was: held that:

“Where the parties make the reduction of the agreement to writing and its signature by them, a condition precedent to its completion, the making and acceptance of a proposition does not constitute a binding contract, and this notwithstanding all of the terms of the agreement have been arrived at.”

On further review in 227 Ill. 104, the decision of the Appellate Court was affirmed.

In Becker v. Becker, 250 Ill. 117, it is written:

“Appellants’ most serious contention in this court is that the decree should be reversed because it is based upon incompetent testimony. Appellants’ position may be stated as follows: The ante-nuptial contract related to marriage, and was therefore required by the statute to be in writing. Since the original contract was an instrument in writing under seal, any new agreement altering or enlarging its terms must also be in writing in order to be valid. In support of this general proposition many authorities are cited, several of which are Illinois cases. If the rights of the parties depended upon the rule contended for by appellants no serious question could arise as to the correctness of the position assumed. Thére are many cases in this court that establish the rule, beyond controversy, that an executory contract under seal cannot be modified by parol, so as to introduce any new element into the contract or by which any new terms are added thereto. The rule contended for by appellants is thus announced by this court in Alschuler v. Schiff, 164 Ill. 298, where, on page 302, this court said: ‘There can no longer be any contention in this State over the general rule insisted upon by appellee, that a sealed executory contract cannot be altered, changed or modified by parol agreement. This rule of the common law has been adopted by this court and consistently followed in a long line of unbroken authorities,’ citing Chapman v. McGrew, 20 Ill. 101; Hume Bros. v. Taylor, 63 id. 43; Barnett v. Barnes, 73 id. 216; Loach v. Farnum, 90 id. 368; Goldsborough v. Gable, 140 id. 269.

“The rule announced in these cases, and othérs in line with them, is too firmly established by the decisions of this court to be seriously controverted at this time. ’ ’

The foregoing language is not only applicable to the conditions in the instant case, but determinative of the rights of the parties contrary to the contentions of the plaintiffs.

In consonance with the reasons above stated, the judgment of the municipal court is reversed and a judgment entered here for the defendant with-costs against the plaintiffs here and below.

Reversed mid judgment here for defendant with costs against plaintiffs here and below.

Wilson and Rynee, JJ,, concur.


text:
    North Avenue State Bank, Appellant, v. Charles F. W. Nichols, Appellee.
    Gen. No. 33,110.

      Opinion filed April 17, 1929.
    Rehearing denied May 1, 1929.

      Follansbee, Shorey & Schupp, for appellant; Mitchell D. Follansbee, Clyde E. Shorey and Ronald N. Brown, of counsel.
    Rosenthal, Kurz & Tiedebohl, for appellee; James Rosenthal, Howard M. Oberndorf and Harris F. Williams, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The plaintiff Bank sued the defendant Nichols on the following instrument in writing with the indorsements thereon, viz.,

“$11,057.97.

Chicago, Illinois, September 1st, 1923.

“After date, and subject to the terms of a certain Creditors’ Agreement of September 1, 1923,1 promise to pay to the order of North Avenue State Bank, Eleven Thousand Fifty-seven and 97/100 Dollars at office of James Rosenthal, Chicago, Illinois. Value received.

No. 88 C. F. W. Nichols.

(On Reverse Side)

“9/1/26 Credit Acct. This note $221.16

8/28/25 Credit Acct. This note $276.45

5/3/24 Credit Acct. This note $276.45”

The declaration consisted of the common counts to which a copy of the foregoing was attached. Defendant pleaded the. general issue and several other pleas, which culminated in a fourth amended plea, to which plaintiff interposed a general demurrer. The plea last aforesaid superseded, with the exception of the plea of the general issue, the three preceding special pleas. An affidavit of merits supporting the fourth amended plea was likewise filed. The demurrer to the fourth amended plea was overruled, plaintiff electing to stand by its demurrer a judgment of ml capiat and for costs was entered, and plaintiff prosecutes this appeal in an effort to reverse that judgment.

There is a question raised upon the bill of exceptions, which we ignore, preferring to rest our opinion upon the merits of the plea rather than to affirm the judgment for the alleged irregularity in the bill of exceptions.

The sole and only question before us for review, presented by the record, is the correctness, or not, of the court’s ruling on the demurrer to the aforesaid amended fourth plea, which is as follows:

“And the defendant, by Eosenthal, Kurz & Tiedebohl, his attorneys, comes and defends the wrong and injury when, etc., and says that he did not undertake and promise in manner and form as the plaintiff has above thereof complained against him; and of this he puts himself upon the country, etc.
“And for a further plea in this behalf, the said defendant, says that the plaintiff ought not to have its aforesaid action against him, the said defendant, because he says that the note sued upon by the plaintiff herein and executed by the defendant herein on September 1st, 1923, was given subject to the terms of a certain creditors’ agreement entered into on the 1st day of September, A. D. 1923, and made a part of said note by being incorporated therein by reference, which said note in words and figures is as follows:”

(Here setting said note out in haec verba).

“Defendant further says that said instrument was given conditioned upon and subject to the terms of a certain Creditors’ Agreement entered into the First day of September, 1923, which said agreement was the one referred to in said note, which said agreement is as follows, to-wit:”

(Here is set out a letter referred to in the agreement from E. H. Kastor, to all whom it may concern.)

Said plea continues:

“The said E. H. Kastor submitted to the unsecured creditors of the said Charles F. W. Nichols Company the instrument in writing above' set out which said proposition of such E. H. Kastor was accepted in writing by a large majority of the unsecured creditors of Charles F. W. Nichols Company whose claims aggregated in an amount over Two Hundred Fifty Thousand ($250,000.00) Dollars, which acceptance in writing was in most instances appended to said proposition of said E. H. Kastor, and is as follows:

“ ‘We, whose names are undersigned, have unsecured claims against Charles F. W. Nichols Company, a corporation. Considering what is said in the foregoing letter by Mr. Kastor, and also considering the fact that we now have no claims against Charles F. W. Nichols personally, and believing the suggestions made by Mr. Kastor are for our best interest and for the best interests of all we agree to accept and do accept the proposition as outlined by Mr. Kastor; in token of which we have signed our names hereto, giving the amounts of our respective claims opposite our signatures. We accept the notes of Mr. Nichols and shall look to him only for payment there-, of.’

“That the said North Avenue State Bank, a corporation, plaintiff, herein, was one of the unsecured creditors of the said Charles F. W. Nichols Company, a corporation, at the time the agreement of September 1st, A. D. 1923, was entered into and the note herein sued upon" was executed; that as such unsecured creditor, the plaintiff herein and other unsecured creditors of the said Charles F. W. Nichols Company, did not sign the said form of acceptance which as hereinbefore stated was signed by a majority of the unsecured creditors,. but did accept the aforesaid proposition and the note herein sued upon in accordance with and subject to the terms of said Creditors’ Agreement.

“That in pursuance of the terms of said Creditors’ Agreement, on to-wit, the 1st day of November, A. D. 1923, a certain Trust Agreement was entered into for the purpose of carrying out the provisions of said Creditors’ Agreement. Said Trust Agreement provided for the appointment of Walter A. Strong, D. M. Deininger and James Eosenthal, all of Chicago, Illinois, to act as trustees. That said named parties accepted the appointment as Trustees under said Trust Agreement of November 1st, 1923 and entered into their duties as Trustees to carry out the purposes as set out in said Trust Agreement, which fully provided for the carrying out of the Creditors’ Agreement entered into September 1st, 1923, which said trust agreement is as follows:

Trust Agreement.

(a) Whereas, Charles F. W. Nichols Company, a corporation organized and existing under the laws of the State of Illinois, has been and is in financial difficulties, and
(b) Whereas, H. W. Kastor & Sons Advertising Company, a Missouri corporation licensed to do business in Illinois, E. H. Kastor," of Chicago, Illinois, Charles F. W. Nichols Company, a corporation, of Chicago, Illinois, and Charles F. W. Nichols, of Chicago, Illinois, did, on the first day of September, 1923, enter into a certain agreement in accordance with a certain proposition submitted to the creditors of the Nichols Company by E. H. Kastor, the terms of which agreement have been accepted by a very substantial part of the creditors of the Nichols Company, and
'' (c) Whereas, it was stipulated in the said agreement of September 1st, 1923, that all of the unsecured claims against the said Nichols Company should be assumed and taken over by the said Charles F. W. Nichols, personally, and that the said Nichols Company should be released of all unsecured debts and claims of creditors existing prior to September 1st, 1923, all such unsecured creditors to accept the personal notes of the said Charles F. W. Nichols, in accordance with and under the terms of the said agreement of September 1st, 1923, and
" (d) Whereas, it was provided in said agreement of September 1st, 1923, that 5% of the gross amount of all the billings done by the Charles F. W. Nichols Company from and after the first day of September, 1923, shall be set aside and that Twenty-five Thousand ($25,000.00) Dollars per year shall be paid in monthly installments to the said Charles F. W. Nichols for his services, and the remainder of such 5% should be turned over to a trust fund for the purpose of liquidating and paying off the said notes given by the said Charles F. W. Nichols in the assumption of the unsecured debts of the said Charles F. W. Nichols Company, as such debts existed prior to the first day of September, 1923, and
"(e) Whereas, it was agreed by and between all of the parties to the said agreement of September 1st, 1923, and the unsecured creditors of the said Charles F. Nichols Company, existing prior to September 1st, 1923, that the life of the said Charles F. W. Nichols should be insured in the sum of One Hundred Thousand ($100,000.00) Dollars for the benefit of the said trust fund, the premiums upon such insurance to be paid by the Nichols Company and not out of the said trust fund, and
"(f) Whereas, it has been agreed by the said Kastor Company, the said Nichols Company, the said Kastor, the said Nichols and a very large number of the said creditors, that Walter A. Strong, D. M. Deininger and James Rosenthal, all of Chicago, Illinois, may act as trustees of the said trust fund for the benefit of all of the creditors of the said Nichols Company, and
"(g) Whereas, the said Walter A. Strong, D. M. Deininger and James Rosenthal have signified and do hereby signify their willingness to accept the said trust and act as such trustees in behalf of all of the said creditors:
“(h) Now, Therefore, it is agreed as follows: ,
“(l) After the deduction of the payment of the salary of twenty-five thousand ($25,000.00) Dollars per annum to the said Nichols, which salary is to be paid in.equal monthly installments, the Nichols Company shall turn over to the trustees the balance of the said five (5%) per cent, computed upon the advertising billings, as provided for in said agreement of September 1, 1923. The said trust fund, as the same is received, shall be deposited by the trustees in such bank or banks as the trustees shall from time to time determine.
“(2) The said trust fund shall be distributed pro rata to the creditors of the Nichols Company, according to their respective claims, semi-annually, after deducting all necessary expense in connection with the administration of the trust, or such distribution shall be oftener if the trustees shall so elect.
“ (3) A list of all the creditors who are to participate in such trust fund, showing their names and addresses and the respective amounts due to each of them, shall be prepared and certified as correct by the said Nichols Company and the said Nichols, and shall be delivered to the trustees as soon as possible after the execution of this trust agreement, and such list must correspond with the evidence of indebtedness given by the said Nichols in pursuance of the agreement hereinbefore referred to, and such list shall control in the distribution of said trust fund unless the trustees shall find said list to be incorrect, in which event the trustees may correct the same.
“ (4) Said trustees shall have the right and power to use so much of the said trust fund for such expenses as they may determine necessary in the administration of said trust, and they shall be the sole judges of the necessity of incurring such expenses and the amount thereof.
“(5) The said trustees shall have the right and power to pay the claim of any creditor or creditors which is less than two hundred ($200.00) dollars out of the said trust fund in full if they think it advisable and best for the interests of all parties concerned, and they shall also have the right and power to compromise or settle any claim for less than the amount thereof if in their opinion they consider it for the benefit of and to the interest of all the parties concerned, and such payments, compromises or settlements said trustees may make at their discretion at such times as they think advisable, and they shall he the sole judges as to whether such payments, compromises or settlements are for the benefit or advantage of all concerned.
“ (6) All payments out of said trust fund shall be made by check upon the depository or depositories of said fund in such manner and upon such signatures as the said trustees may from time to time determine.
“(7) The trustees shall not be required to verify the correctness of the accounting by the said Nichols Company as to the amount or amounts turned into the trust fund by the said Nichols Company, but shall have the right to verify the same from the books and records of the said Nichols Company, and for such purpose shall have the right to employ such public accountant or accountants, or expert accountant or accountants as the said trustees may select at the expense of the said trust fund, and shall have the right to accept the report of such accountant or accountants which may be furnished to said trustees by the said Nichols Company relating to such accounting, and the said Nichols Company agrees to furnish to said trustees semiannually, or of tener if requested, an accountant’s report as to the amount due or to become due the said trust fund, and the said trustees shall be held accountable only for the money turned over to the said trust fund by the said Nichols Company, or from any other source.
“(8) The trustees shall not be liable for errors of judgment in acquiring, managing, holding or transferring any of the property of this trust, nor for any act or omission to act performed or omitted by them in the execution of this trust in good faith, nor shall they nor any or either of them be liable for the acts or omissions of each other, or of any agent or servant appointed by or acting for them, and they shall not be obligated to give any bond to secure the due performance of this trust by them, and said trustees shall not be liable individually or collectively in any ■ event, except for their own wilful and intentional breaches of the said trust.
“ (9) In the event of the resignation of any of said trustees, or the inability of any trustee to act, or in the event of the death of any of the trustees, the survivor, or surviving trustees shall have the right to fill such vacancy.
“ (10) In case of the death of the said Charles F. W. Nichols the said trustees shall collect the amount due them as such trustees under any insurance policy or policies then in force for such purpose on the life of the said Nichols, and after deducting the expense of collecting such insurance money and procuring the same for the trust fund, such amount as may be so obtained and brought into the said trust fund shall be distributed in the same manner as herein provided for the distribution of the said trust fund, and the said Nichols Company does hereby agree to turn over to the said trustees, during the life of said Nichols, such insurance policies as may be taken out in favor of the said trustees as beneficiaries, and will from time to time turn over to the said trustees the premium receipts showing the payments of premiums upon such policies, but the said trustees shall not be liable or responsible for the failure of the payment of premiums upon such policies, nor for the cancellation of any such policies, but may in case of neglect or failure to pay the premiums on any such policies pay the same out of the said trust fund, and recover the amount so paid from such party or parties that have undertaken the obligation to pay the same, and the said trustees may, if in their discretion they deem it advisable and for the best interests of the creditors, obtain and accept the cash surrender value of the said policies for the benefit of the said trust fund.
“(11) In the event of the death of the said Charles F. W. Nichols before the said notes given by the said Nichols, in the assumption of the unsecured debts of the Nichols Company, have been fully paid, the five per cent of the gross amount of the Nichols Company’s billings over and above Twenty-five Thousand ($25,-000.00) Dollars per year shall continue -to be turned over to the said trust fund until all of said notes of the said Nichols have been paid.
“(12) The said trustees shall act until the said creditors of said Nichols Company shall be paid in full, unless by reason of some unforeseen contingency no money can be further obtained or collected under this agreement, in which event the balance of the trust fund on hand, after the deduction of all necessary expenses, shall be distributed among those entitled thereto, and upon such distribution of such balance of the trust fund this trust shall be terminated and the trustees discharged.
“ (13) The trustees shall have the power to determine all questions and doubts arising in relation to any of the provisions hereto, and after such determination, whether made on a question actually raised or implied in the actions and proceedings of the trustees, shall be conclusive and shall bind all persons interested herein.
“ (14) The act or acts of the majority of the trustees shall be binding upon all the trustees in the performance and carrying out of this trust agreement.
“ (15) This agreement shall be binding upon all of the parties hereto and their respective heirs, legal representatives, successors and assigns.
“In Witness Whereof, the said parties hereto have executed this agreement this first day of November, 1923.
H. W. Kastor & Sons Advertising Company.
By E. H. Kastor, Secretary & Treas.
Attest:
E. H. Kastor
Secretary.
Charles F. W. Nichols Company,
By Charles F. W. Nichols, President.
Attest:
Wallace Moyer, E. H. Kastor
Secretary. Charles F. W. Nichols
Walter A. Strong
D. M. Deininger
James Rosenthal.
“That said Trustees have, from the date upon which said Trust Agreement was entered into to the present date, acted as Trustees, and are still acting as Trustees under said Trust Agreement. That the plaintiff herein before accepting said instrument sued upon was duly advised of the terms of said trust agreement and a copy thereof was delivered to it.
“That the plaintiff, together with the other unsecured creditors of the said Charles F. W. Nichols Company, accepted and agreed to the terms of the said Trust Agreement, and the said plaintiff and the other unsecured creditors of the said Charles F. W. Nichols Company agreed to look solely to the said Trust Fund so created under and by virtue of said Trust Agreement for the payment of the notes so delivered to them respectively, all of which notes, were of the same tenor and effect as the note herein by the said plaintiff sned upon.
“That the said Trustees have paid to the plaintiff herein under and by virtue of the said Trust Agreement out of the trust fund so created, the following amounts to be applied upon the instrument herein sued upon, which amounts have been accepted by the plaintiff and are set out in the plaintiff’s declaration as credits upon said instrument, to-wit:
May 3rd, 1924...........■...........$276.45
August 28th, 1925................... 276.45
September 1st, 1926................. 221.16
“That the Trustees at the time of the payment of said amounts to said plaintiff herein paid a like proportioned amount to the other unsecured creditors and in the distribution of the trust funds so created, paid such unsecured creditor in, like proportion to their respective claims and paid no more to any one said unsecured creditor than such like proportion.
“That the plaintiff herein accepted the instrument sued upon conditioned upon and subject to the terms of the creditors’ agreement and said Trust Agreement herein referred to.
“That it was the purpose and intent of the said Creditors’ Agreement and the said Trust Agreement so entered into and accepted by and agreed to by the said unsecured creditors of the said Charles F. W. Nichols Company, a corporation, that the unsecured creditors, of which the plaintiff was one, by accepting and agreeing to said Creditors’ Agreement and said Trust Agreement, will look solely to the said Trust Fund _ for the payment of the said instruments so delivered to and accepted by the unsecured creditors, and by said plaintiff herein who was one of them, and that said notes executed by the said Charles F. W. Nichols to the said unsecured creditors of which the plaintiff herein was one, were executed simply and solely for the purpose of evidencing the respective indebtedness due to the respective unsecured creditors of the said Charles F. W. Nichols Company, all of which was known to and agreed to by said plaintiff and the other unsecured creditors, and accordingly, the said plaintiff must look to the Trust Fund created under the Trust Agreement which was drawn pursuant to the Creditors’ Agreement and in accordance with same, for its payment of said instrument sued upon, and that the said Charles F. W. Nichols, the defendant herein, is not personally liable to the said North Avenue State Bank, a corporation, plaintiff herein, upon the said instrument sued upon herein.
“And this defendant is ready to verify.
“Wherefore, he prays judgment if the plaintiff ought to have its aforesaid judgment against him, etc.”

The demurrer admits the truth of the averment of the plea that the plaintiff before accepting the instrument sued upon was duly advised of the terms of said trust agreement and that a copy thereof was delivered to it; and further that plaintiff, together with the other unsecured creditors of said Nichols, accepted and agreed to the terms of the trust agreement and agreed to look to the trust fund created by the agreement for payment, and furthermore that the trustees paid to the plaintiff, by virtue of said trust agreement, out of the trust fund so created, the several amounts at the several dates indorsed upon the back of the note in suit, and that a like amount was paid to all of the other unsecured creditors of said Nichols, and that plaintiff accepted the instrument sued upon subject to the terms of the trust agreement.

Plaintiff argues for reversal:

1. The construction and interpretation of the written documents set out in defendant’s fourth amended pleas and the legal effect thereof are questions of law for the court.

2. The intention of the parties to a written contract must be gathered from the language the parties have used to express that intention, and, in the absence of some ambiguity, no evidence is admissible to vary the meaning of the terms used.

3. A written contract purporting to be a complete and final statement of the whole transaction affords the only evidence of its terms and conditions.

4. A demurrer admits all facts well pleaded but not the pleader’s conclusions of fact and law.

While we have no fault to find with these contentions as axiomatic principles of law, we are unable to discover in this record that any of them have been infringed in the rulings of the court upon the demurrer to the fourth amended plea, and that so far as we have been able to discover these axiomatic principles of law were not departed from by the trial judge in his decision upon such demurrer.

The note sued upon is the contract of the parties and by it each of them must be and is bound, and the liability of the maker is environed within the four corners of the document. Naught may be added to nor detracted from it. The trust agreement set out in the fourth amended plea is the creditors’ agreement referred to of date September 1, 1923, in the document in suit. A copy of that trust agreement was delivered to the plaintiff at the time of the execution and delivery of the document' in suit, and accepted by plaintiff, and thereafter as appears from the three indorsements upon the back of the document, three payments were paid to and accepted by plaintiff from the trust fund created under the trust agreement. The acceptance of these three payments stands admitted by the plaintiff’s demurrer. Plaintiff in effect ratified, if such was necessary, the terms of the note by accepting the foregoing three payments from the trust fund created by the terms of the trust agreement. This dicta is supported by Bradley v. Marshall, 54 Ill. 173, in which a demurrer to a similar plea as in the case at bar was sustained and the court said:

“We do not concur in the objections taken to this plea. The note, and the written agreement as to the mode in which it should be payable, having been executed together, are to be construed as one agreement, and the plea shows performance, or readiness to perform, on the part of the defendant. It is said the note was payable to Beaver & Go. and the plea sets up an agreement made with Beaver alone. But the plea avers the consideration for the note moved solely from Beaver, and that the note belonged solely to bim. Even then if the name ‘Beaver & Co.’ used in the note indicated a firm consisting of Beaver and some other person, yet, if a suit had been brought in the name of such firm as payee, the firm would have been bound by the agreement, and its assignee, after maturity, is equally bound.”

And for doing the contrary to what the court did in the instant case in overruling the demurrer, the judgment was reversed. Heldman v. Gunnell, 201 Ill. App. 172; Davis v. McVickers, 11 Ill. 327; Van Zandt v. Hopkins, 151 Ill. 248; Gould v. Magnolia Metal Co., 207 Ill. 172; Bradshaw v. Combs, 102 Ill. 428; Toledo Computing Scale Co. v. Tyden, 141 Ill. App. 21; Kraft v. Hora, 159 Ill. App. 363.

While it is true that some of the unsecured creditors signed the trust agreement, which plaintiff did not, yet it is equally bound by the agreement by reason of its recitation in the document in suit and the delivery of a copy thereof to the plaintiff and complying therewith, as we have before said, by accepting three payments from the trust fund. The suit before us is between the maker and the plaintiff, and therefore the rights of third parties are not involved. The recitation in the document in suit regarding the trust agreement, charged plaintiff with knowledge of the contents thereof, and the delivery of a copy thereof to plaintiff gave him actual knowledge of its contents, and by accepting the three payments thereunder, ratified the same. If plaintiff had not acquiesced in the trust agreement by receiving the three payments thereunder without signing the trust agreement, the question might have arisen as to whether it was bound thereby. It is a familiar principle of law that the ratification of an agreement will be as effective as if such agreement was in the first instance signed by the party sought to be bound thereby. It therefore follows that during the time the trust agreement remained in force plaintiff must look to the funds realized under the trust agreement for payment, and in the meantime cannot maintain an action thereon. Plaintiff having acquiesced in the trust agreement and having received payments thereunder covering a period of over five years, is not permitted to repudiate an agreement which he has for so long a time accepted, and ratified. National Time Recorder Co. v. Feypel, 93 Ill. App. 170; Globe Wernicke Co. v. Siegel Meyers School of Music, 209 Ill. App. 529.

The words “after date” in the instrument in suit are controlled by and must be construed in accord with the creditors’ agreement of September 1,1923, therein referred to. Otherwise “after date” would in law mean on demand, but the .words of the so-called note nullify any such legal presumption.

The circuit court did not err in overruling the demurrer of the plaintiff to defendant’s fourth amended ■plea, consequently its judgment of nil capiat and for costs is affirmed.

Affirmed.

Wilson and Ryner, JJ., concur,