author: Mr. Justice Jett

text:
    Daniel Boone Woolen Mills and Rock Island Garment Company, Appellees, v. Marcus S. Laedeke, alias Mike Laedeke, et al., Appellants.
    Gen. No. 7,417.
    1. Contempt — hearing as to contempt committed in presence of court. In cases of direct criminal contempt committed in the presence of the court, no hearing or trial is contemplated and none can be allowed because no court except that against which the contempt is committed has power to punish it.
    2. Contempt — two classes distinguished. Proceedings for contempt are of two classes: those to punish for disobedience of court’s orders and having as the principal object the preservation of the power and the vindication of the dignity of the court; and those prosecuted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights, and to administer the remedies to which the court has found them to be entitled.

      3. Contempt — nature of proceedings. Contempts directed against the dignity and authority of the court are in their nature criminal or quasi criminal, and proceedings for their punishment generally conform to proceedings in criminal cases, while proceedings to punish for civil contempt are remedial and conform to proceedings in civil cases.
    4. Contempt — violation of injunction civil contempt. Violation of an injunction against interference with a complainant’s employees is a civil contempt.
    5. Contempt — change of venue. By Venue Act, sec. 18, Cahill’s St. ch. 146, H 18, legislature did not intend to allow a change of venue in cases of direct criminal contempt.
    6. Contempt — civil contempt proceeding in equity under Tenue Act. Proceeding for punishment of civil contempt is a proceeding in equity and falls within the purview of Venue Act, sec. 1, Cahill’s St. ch. 146, V 1.
    7. Contempt — change of venue in civil proceeding. Courts have inherent power, even in the absence of a statute, to grant a change of venue in a proceeding to punish for civil contempt.
    8. Parties — advantage of misjoinder may he taken hy demurrer. Where misjoinder of parties appears on face of bill, advantage of it may be taken by demurrer.
    9. Parties — joint complainants. Joint complainants cannot maintain a bill for a several grievance.
    10. Equity — all parties to he entitled to recovery. All the parties who join in a suit must be entitled to recover or none can.
    11. Equity — striking out complainants having no cause of action. If any one or more of the complainants in a suit in equity fail to maintain a case against defendant, the remainder of the parties, in order to maintain their suit, must by leave of court amend their bill by striking out the names of such co-complainants who had no cause of action.
    12. Injunctions — misjoinder of parties complainant. Two corporations could not maintain a bill to enjoin members of labor union from interfering with their employees, though one of the corporations was a subsidiary of the other, as there would be misjoinder of parties.
    Appeal by defendants from the Circuit Court of Rock Island county; the Hon. William T. Church, Judge, presiding. Heard in this court at the October term, 1924'.
    Reversed.
    Opinion filed June 27, 1925.
    Rehearing denied September 26, 1925.
    Remanding order stricken October 19, 1925.
    William A. Cunnea and Ben A. Stewart, for appellants.

      Kenworthy, Dietz, Shallberg, Harper & Sinnett, for appellees; Cyrus E. Dietz and J. J. Neiger, of counsel.
   Mr. Justice Jett

delivered the opinion of the court. This is an appeal by Marcus S. Laedeke, Bertha Caldwell, May Nichols and Jack Torch from an order entered July 19, 1924, by the circuit court of Bock Island county, adjudging them guilty of contempt of court for violating a temporary injunction, issued against Laedeke, Torch arid others, defendants named in the bill of appellees, Bertha Caldwell and May Nichols, not being parties to said bill. The bill among other things alleges that the Daniel Boone Woolen Mills is a corporation, organized and existing under and by virtue of the laws of the State of Hlinois, with its principal office and place of business in the City of Chicago, and that the Bock Island Garment Company is a corporation, organized and existing under and by virtue of the laws of the State of Illinois, with its principal office and place of business in the City of Bock Island, in the County of Bock Island, and State of Hlinois.

The bill also alleges that the said two corporations are engaged in manufacturing clothing in several different places in Illinois and Iowa and that they own shops and factories in Bock Island, Moline and Davenport; that in May, 1922, the complainant Bock Island Garment Company filed in the circuit court of Bock Island county its bill for an injunction against some of the defendants, in this cause and others, alleging that it was the owner- of some of the property described in the bill of appellees and engaged in the same business and asking for the same relief, and in which it petitioned for and was allowed a temporary injunction; that, having procured the injunction, it took no further action in the suit and a copy of the bill and affidavit in that proceeding, together with the order of the court for temporary injunction, and writ of injunction, are attached to and made a part of the bill in this cause. The bill in this case is predicated upon the theory that the defendants are labor unions and officers and agents of labor unions, and particularly of the Amalgamated Clothing Workers of America, and that in pursuance of their policy, and in accordance with the constitution and by-laws of said Amalgamated Clothing Workers of America, had entered into a conspiracy to unionize the employees of the complainants, and to induce their employees, all of whom it is alleged were working for the complainants, under the several and° individual written contracts, to work for them, from a certain date until a definite certain stated period, and for designated rates and wages, to join a union and to demand an increase of their rates and wages and a shortening of the working hours and of better working conditions; and that if the complainants should refuse to accede to their requests and demand, to strike; and it is further charged in the bill of appellees that they fear and believe that the defendants will call and bring about a strike and a joining of such union or unions by their employees, if the defendants are given notice of the filing, this their bill of complaint, or of the application for a writ of injunction as prayed for, and that their rights will therefore be irreparably lost, unless such an injunction shall be immediately issued without notice.

It is alleged in the bill that the defendants Laedeke and Torch, and others named, are the hired agents of the Amalgamated Clothing Workers of America, and they are organizers of said unions to create labor differences between the complainants’ employees, induce them to break their several contracts, for a given term of employment, and instigate a strike to accomplish the purpose of said labor unions. The defendants filed a general and special demurrer to the bill, specially charging that the bill is multifarious; that there is a misjoinder of the parties complainant; that it appears on the face of the bill that one of the joint parties complainant is not entitled to any of the relief prayed for; that it filed a similar bill and for similar relief in 1922, predicated upon substantially the same matters and praying for the same relief.

Owing to the conclusion we have reached, we do not deem it necessary to set out at length the allegations of the bill, nor all of the matters and things appearing in the general and special demurrers. Petitions were filed by the joint complainants against the appellants and others, for a rule to show cause why they should not be° held in contempt of court, for a supposed violation of the injunction issued by virtue of the joint bill of complaint of appellees. A hearing was had, which resulted in the court finding appellants guilty of contempt of court in violating the writ of injunction as charged in the second, third and fourth petitions, and Marcus S. Laedeke and Jack Torch were sentenced to jail for sixty days each, and Bertha Caldwell and May Nichols were each sentenced to jail for the period of thirty days. A number of reasons are assigned for reversing the judgment finding appellants guilty.

The appellants made an application for a change of venue, which was denied, and the ruling of the court is defended by counsel for appellees, because they say there is no authority of law in Illinois for a change of venue in contempt proceedings. They cite a number of authorities to support their position, and it must be at once recognized that the courts of the various jurisdictions are not in harmony upon this subject. However, it is universally conceded that in cases of direct criminal contempt committed in the presence of the court, no hearing or trial is contemplated, and none can be allowed, because no court except that against which the contempt is committed has power to punish it. Proceedings for contempt are of two classes: (1) those prosecuted to punish for disobedience of the court’s orders and having as the principal object the preservation of the power and the vindication of the dignity of the court; and (2) those prosecuted to preserve and enforce the . rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights, and to administer the remedies to which the court has found them to be entitled. Bessette v. W. B. Conley Co., 194 U. S. 324.

Contempts directed against the dignity and authority of the court are in their nature criminal or quasi criminal, and proceedings for their punishment generally conform to proceedings in criminal cases, while proceedings to punish for civil contempt are remedial in their nature and, as a general rule, the proceedings conform to the proceedings in civil cases. However, in a strict sense, proceedings for the prosecution of all contempts may be best characterized as sui generis.

The line of demarcation between criminal contempts and civil contempts is sometimes dim and the distinction made is often shadowy. In a number of jurisdictions the violation of an injunction against interference with a complainant’s employees is held to be a criminal contempt, but in Illinois it is denominated a civil contempt. O’Brien v. People, 216 Ill. 354, at page 369; Franklin Union No. 4 v. People, 220 Ill. 355; Hake v. People, 230 Ill. 174. Treating the offense charged in this case as a civil contempt, the question of the guilt of the defendants could not be determined by the trial judge from matters within his own knowledge, but from a consideration of and judgment upon the weight and credibility of evidence.

So far as we can learn, the courts of this State have not yet decided whether a change of venue is allowable in cases of civil contempt. In the case of Crool v. People, 16 Ill. 534, much relied upon by appellees, the defendants were charged with violating an injunction. An application for a change of venue ,was made to the circuit court of Peoria county. It was allowed to the circuit court of Tazewell county, not only as to the proceedings for contempt but as to the entire matter. The latter court, in turn, remanded the contempt proceedings to the Peoria county circuit court, but dismissed the bill for injunction. The Peoria county circuit court proceeded with the contempt proceedings and the defendants were adjudged guilty.' The opinion of the Supreme Court discloses that the proceedings relative to a change of venue were determined under the fifth section of the statute then in force, entitled “Venue,” and it was held that informations for contempt were not included within the purview of said act, and that the attempted change of venue from Peoria to Tazewell was void and therefore did not divest the circuit court of Peoria county of its jurisdiction.

A reading of the opinion in Crook v. People, supra, will disclose that the court treated the contempt as a criminal contempt and not as a civil contempt, and it is evident that the court’s conclusions with reference to the validity of the change of venue granted in that case is predicated upon the assumption that the contempt was criminal. In view of the later holdings of the Supreme Court in the cases above cited, the contempt in the Crook case was civil and not criminal. The points decided in that case are: That the contempt being criminal, the fifth section of the Venue Act (now section 18, rewritten) [Cahill’s St. ch. 146, ¶ 18] is not controlling and that the legislature did not intend to allow a change of venue in cases of direct criminal contempt. Therefore the views in that case have no application to the case at bar which involves a civil contempt.

It will be observed that said section 18 of the present “Venue” Act relates to criminal proceedings, while section 1 of said Act [Cahill’s St. ch. 146, [[ 1] provides for a change of venue in any civil suit or proceedings in law or equity. It is contended that proceedings for the punishment of a civil contempt is not a suit or proceeding, either at law or in equity. There is some contrariety of view upon this question as expressed by the courts and text-writers, but we are convinced that not only the weight of authority but the logic of sound reasoning makes the matter in such a case as this a proceeding in equity. The text in 13 Corpus Juris, p. 60, sec. 83, after laying down the rule that a party accused of contempt committed in the presence of the court is not entitled to a change of venue, proceeds as follows: “It has been held, however, that under a statute which provides for the removal of any cause or matter in certain cases, a contempt proceeding may be removed,” etc. The view expressed by the text appears to be well supported by the authorities cited in the footnotes. The Supreme Court in this State has repeatedly held that a proceeding for contempt, in violating an injunction, is a civil proceeding and that the rules of chancery practice govern throughout. Hake v. People, supra; O'Brien v. People, 216 Ill. 354. Taylor on Statutes, p. 1323, sec. 84, says: “A proceeding to punish for contempt is a cause or matter within the meaning of statutes upon that subject,” and cites a number of the above-mentioned cases.

We think there is little room to doubt that a proceeding for the punishment of civil contempt is a proceeding in equity and falls within the purview of section 1 of the Venue Act. But, even if there were room for doubt as to the existence of express statutory authority for a change of venue in cases of civil contempt, we would not hesitate to hold that courts have inherent power, even in the absence of a statute, to grant a change of venue in such matters. 27 Ruling Case Law, p. 810. The reasons for not allowing a change of venue in cases of direct criminal contempt are no more potent and impelling than are the reasons for allowing a change of venue in cases of civil contempt. In cases of direct criminal contempt, the proceedings are summary. The' facts are within the personal knowledge of the court. There is no issue to be determined. The only question relates to the degree of punishment. But, in civil contempts, the court is without any personal knowledge of the facts concerning the alleged violation. The guilt of a defendant must be proven by facts made known to the court, through the evidence of witnesses or of documents, or both. The court must then weigh the ev' dence, measure the credibility of witnesses and call into action his personal judgment in arriving at a decision. The very notion of refusing to allow a change of venue, after the accused has made oath to his belief that the trial judge is biased and prejudiced against him, is repugnant to our system of jurisprudence. So ardent have the courts been in upholding the right of a party to a trial before an unprejudiced judge, that it has been held that where a proper affidavit has been filed asking for a change of venue, because of the prejudice of a judge, such judge immediately loses all jurisdiction over the case, except to make the formal orders transferring the cause. This procedure is not only grounded upon the firmest' principles underlying the administration of justice, but is thoroughly consistent with the proper demeanor and dignity of a judge, whose mental attitude toward the accused with respect to the particular proceeding has been challenged.

We are not called upon to express our views as to the right of a change of venue in cases of constructive criminal contempt, such as the publication of scurrilous matter concerning the presiding judge, but we are convinced that justice demands and the law provides a change of venue may be had in cases of civil contempt, where the accused makes oath that he cannot have a fair and impartial hearing because of the prejudice of the judge. It is unthinkable that, under our system of laws, a defendant may be required to submit his liberty and his estate to the disposal of a trial judge Who is solemnly charged with prejudice against the accused.

It is insisted by appellants that there is a misjoinder of parties complainant. It will be remembered that the bill of appellees alleges that in May, 1922, the complainant Bock Island Garment Company filed its bill against the defendants, or part of them, for an injunction upon substantially the same ground as is relied upon in this proceeding and a temporary injunction was obtained in the same language as prayed for and procured in this cause; that after it procured the writ it did not prosecute its bill for the relief prayed, but after the elapse of two years joined the complainant Daniel Boone Woolen Mills as a joint complainant, and set up its former claims as joint claims in this suit together with other matters occurring since its bill was filed and the said former bill is made a part of the joint bill. It is alleged in the joint bill that certain contracts had been entered into with their employees that were similar to those made individually by the Bock Island Garment Company, and the joint bill also alleges that one of the complainants operates certain shops and plants and the other complainant does likewise. The objection of the misjoinder was raised by the demurrer to the bill which has not been disposed of. Where the misjoinder appears on the face of the bill advantage of it may be taken by demurrer, which was done in this case. Joint complainants cannot maintain a bill for a several grievance. The rule is recognized in equity, as in law, that all the parties who join in a suit must be entitled to recover or none can. If any one or more of the complainants in a suit in equity fail to maintain a case against the defendant, the remainder of the parties, in order to maintain their suit against the defendant, must, by leave of court, amend their bill by striking out the names of such co-complainants who had no cause of action. Girard v. Lehigh Stone Co., 280 Ill. 479, 485, 486; Lovelace v. Hutchinson, 106 Ala. 417, 17 So. 623; Story’s Eq. PI, sec. 525c. In reaching this conclusion, we are not unmindful of the fact that it is alleged in the joint bill that the Rock Island Garment Company was and is now the subsidiary of the Daniel Boone Woolen Mills. Although the joint hill alleges that the said Daniel Boone Woolen Mills have controlled and directed the enterprise and business of the complainant, the said Rock Island Garment Company, and have sold and furnished to the said Rock Island Garment Company all woolens and clothing material used and manufactured by the Rock Island Garment Company, and have purchased and received from the said Rock Island Garment Company the entire manufactured product of the said Rock Island Garment Company, yet it remains that each of the complainants is an independent corporation, and as such is, in law, a separate and independent entity, and governed and controlled by its charter and the statute authorizing it. In their transactions, according to the allegations of the bill of complaint, they have recognized each to be an independent organization and entity, and this being true, it is evident that the said joint complainants cannot maintain a bill for a several grievance.

Other errors are assigned and argued, but owing to the conclusion we have reached, we will not discuss them further.

We are therefore of the opinion that the court was in error in denying a change of venue- to the appellants, and that there is a misjoinder of the parties complainant.

The judgment and order of the circuit court of Rock Island county is reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Justice Partlow

license: Public Domain

text:
    The Manhattan State Bank, Appellant, v. C. J. Moritz, Inc., Appellee.
    Gen. No. 7,482.
    1. Mechanics’ liens — money furnished contractor. Bank furnishing money to contractor to pay to laborers entitled to a lien on funds in the hands of the State due to State contractor was not entitled to a lien under Mechanics’ Lien Act, sec. 23, Cahill's St. - ch. 82, T 23.
    2. Equity — adequate remedy at taw. One is not entitled to apply to a court of equity for relief where he has an adequate remedy at law.
    3. Equity — adequacy of remedy at law. Allegation that there was a verbal agreement for the advancement of money to a public contractor with the understanding that the agreement should be reduced to writing and that $4,000 was advanced, but contractor refused to sign, held not to show such a fraud as would confer jurisdiction on a court of equity to fix a lien on money due from the State to the contractor.
    4. Accounting suits — equity jurisdiction. Courts of equity have general jurisdiction in matters of account where the acounts are mutual, or where they are on but one side and a discovery is sought which is material to the relief prayed, or where the state of account between the parties is intricate and complicated, or so involved with the rights of third parties that it would be difficult for a jury to unravel the numerous transactions.
    5. Accounting suits — adequacy of legal remedy. The jurisdiction of equity where accounts are involved does not depend upon the existence of a remedy at law, but upon the adequacy and practicability of such remedy and upon the discretion of the court.
    6. Accounting suits — easily ascertained account. A bill by a bank seeking to ñx a lien on funds owing by the State to a road contractor, held not to give equity jurisdiction on the theory that an accounting was necessary, there being only one item claimed and the amount of money owing by the State being easily ascertainable.
    7. Assumpsit — when action for money had and received lies. Action for money had and received may be maintained whenever the defendant has obtained money of the plaintiff which in equity and conscience he has no right to retain, the law implying a promise to pay, notwithstanding there was no privity of contract between the parties.

      Appeal by plaintiff from the Circuit Court of Will county; the Hon. Fbedebick A. Him, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed July 11, 1925.
    Barr & Barr, for appellant.
    Snapp, Heise & Snapp and Parker & Bauer, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.

The original bill in this case was filed in the circuit court of Will county by The Manhattan State Bank, The Western Wheel Scraper Works and several small claimants, to obtain a lien against a fund in the hands of the State of Illinois due appellee, C. J. Moritz, Inc., on account of a hard road contract with the State. A demurrer to the bill was sustained as to the Bank and the Scraper Works, and overruled as to the other claimants. The Scraper Works elected to stand by the bill and it was dismissed. Appellant, The Manhattan State Bank, filed an amended bill, to which a demurrer was sustained, the amended bill of the Bank was also dismissed for want of equity, and from that decree appellant,' The Manhattan State Bank, prosecutes this appeal.

The amended bill alleged that Moritz had a contract with the State of Illinois for the improvement of a portion of State bond issue route number 44, in Will county, for a consideration of $205,140.06. Afterwards, in violation of the terms of the contract, Moritz sublet the grading work to James F. Ryan for the portion between Wilton Center and the Elgin, Joliet & Eastern Railroad Company crossing, near the City of Joliet. Ryan began the grading on August 21, 1922, and continued until December 13, 1922, when he was adjudged a bankrupt and abandoned his contract. On August 21, 1922, Ryan was without sufficient money to pay his laborers and other expenses necessary to carry on the work, and on that day a verbal agreement was made between Ryan, Moritz and the Bank to the effect that the Bank should make the necessary advances from time to time to Ryan of money to carry on the contract, and that for the protection of the Bank a written agreement should be entered into between them providing that the proportion of the money that became due to Moritz from the State, from time to time, as the work progressed, that belonged to Ryan by reason of his contract, should be paid to the Bank, and after deducting the amount the Bank had from time to time loaned Ryan, the balance should be paid to. Ryan; that the contract should specifically authorize the State of Illinois, acting through its Department of Public Works and Buildings, to send this money to the Bank; that the Bank should commence the advancement of money immediately, and that the written contract should be executed later. In pursuance of this verbal agreement, the Bank advanced to Ryan $4,000, which was used by him in the payment of his laborers and expenses under the contract, which work would have entitled the persons to whom the money was due to a hen as provided in section 23 of the Mechanics’ Lien Act [Cahill’s St. ch. 82, ft 23] had they not been paid with the money furnished by the Bank. In pursuance of this agreement the Bank caused to be prepared a written contract evidencing the intention of the parties, which agreement was signed by Ryan and the Bank, and afterwards, on October 1, 1922, submitted to Moritz for execution, and Moritz refused to sign the same. All of the money advanced by the Bank to Ryan was advanced and loaned prior to the refusal of Moritz to execute the written agreement, and was advanced in reliance upon the verbal agreement made between the parties. Moritz knew that the Bank intended to advance the money to Ryan in reliance upon the verbal understanding, and all the money was advanced in reliance upon the contract being executed by Moritz. The bill further alleged that Byan actually earned, under his subcontract with Moritz, $10,000 and that said money was actually paid by the Department of Public Works and Buildings to Moritz. The bill prayed for the establishment of a lien as provided by section 23 of the Mechanics’ Lien Act on the funds in the hands of the Department of Public Works and Buildings; that a general accounting be had of the amount of money received by Moritz that was in fact earned by Byan on his subcontract, or the amount which was earned by him which was applied to some other source; and that Moritz be decreed to pay the amount thereof to the Bank.

It is claimed by appellant that the amended bill stated a good cause of action for relief under general equity principles; that the demurrer to the amended bill admitted all of the facts well pleaded; that the facts alleged and admitted constitute a fraud perpetrated by appellee; that fraud is one of the ordinary grounds of jurisdiction of a court of equity; that the acts of the parties amounted to an equitable assignment of the money earned by Byan from appellee; that this money was paid by the State to appellee; that- appellee should be required to disclose the amount, and to account for the same, which is another ground of equity jurisdiction; that the acts of the parties created an equitable contract in favor of appellant, in that a representation of a future intention, absolute in form, was made by appellee for the purpose of influencing the conduct of appellant, and it was then acted upon by appellant, and a court of equity will enforce such a contract; that had the $4,000 not been loaned by appellant to Byan, the persons receiving the same would have been entitled to a lien under section 23 of the Mechanics’ Lien Act, and a court of equity will subrogate the demand of appellant to the rights that these persons would have had.

The demurrer to the amended bill was apparently sustained upon the grounds that the facts stated did not entitle appellant to equitable relief for the reason that it had an adequate remedy at law. Appellant in its brief says: “While as to the complainants other than the appellant, the proceeding is to enforce a lien under section 23 of the Mechanic’s Lien Act, yet, it is a bill in equity,- and not a statutory proceeding, and is governed by general chancery practice, and is not governed by any other provision of the Mechanic’s Lien Act.” Notwithstanding this statement, the bill alleges that after the oral contract was made the bank advanced to Ryan $4,000, which was used by him in payment of his laborers and expenses, which work would have entitled the persons to whom the money was due to a lien under section 23 of the Lien Act, had they not been paid with money furnished by the bank; that a court of equity will subrogate the demand of appellant to the rights which these persons would have had. The prayer is for the establishment of a lien as provided in section 23, on the funds in the hands of the Department of Public Works and Buildings.

Section 23 provides that any person who shall furnish material, apparatus, fixtures, machinery or labor to any contractor having a contract for a public improvement for the State shall have a lien on the money, bonds or warrants due, or to become due, such contractor under such contract. In Hoier v. Kaplan, 313 Bl. 448, in construing this section, it was held that the proceeding being purely statutory, a lien will be allowed only for such items as come strictly within the provisions of the section, and that the statute will not be construed to include cases not provided for by its language even though they may fall within its reason. There is nothing in the statute which provided for a lien for money furnished a contractor to pay bills. The only lien provided is to those who furnish material, apparatus, fixtures, machinery or labor. The claim of appellant does not come within the language of the statute, although it may fall within its reason, but, notwithstanding this fact, the bill prays that a mechanic’s hen shall be allowed under section 23.

Even if it be conceded that under the general powers of equity there might be authority in a court of equity in a case of this kind, yet appellant would not be entitled to apply to a court of equity if he had an adequate'remedy at law. As one of the reasons why equity should assume jurisdiction, appellant insists that there was a fraud committed, and for that reason appellant is entitled to relief in equity. There is no doubt that fraud is sufficient to give equity jurisdiction in certain cases. Wright v. McKinney, 287 Ill. 529. The only "allegation of fraud is that there was a verbal agreement for the advancement of the money to Eyan with the understanding that the agreement should be afterwards reduced to writing; that in pursuance of this verbal agreement, appellant advanced $4,000 to Eyan; that subsequently a written contract was drawn up, was signed by appellant and Eyan, but appellee refused to sign it. We do not think these facts standing alone constitute such a fraud as would confer jurisdiction upon a court of equity.

Appellant also seeks to confer jurisdiction upon equity by an allegation with reference to an accounting. As a general rule, courts of equity have general jurisdiction in matters of account where the accounts are mutual, or where they are on but one side, a discovery being sought which is material to the relief prayed (Hair Co. v. Daily, 161 Ill. 379; Gleason d Bailey Mfg. Co. v. Hoffman, 168 Ill. 25); or where the state of the account between the parties is intricate and complicated, or so involved with the rights of third parties that it would be difficult for a jury to unravel the numerous transactions. Crown Coal & Tow Co. v. Thomas, 177 Ill. 534. The jurisdiction of equity in cases of this kind does not depend upon the existence of a remedy at law, but does depend upon the adequacy and practicability of such remedy and upon the discretion of the court. Miller v. Russell, 224 Ill. 68.

In Forster v. Brown Hoisting Machinery Co., 266 Ill. 287, it was held that a bill purporting to be for the specific performance of a contract and for an accounting was properly dismissed, where the indebtedness alleged to exist was a purely legal demand for the recovery of money under a contract, there being no complicated state of accounts between the parties, and nothing alleged in the bill showing that the complainant’s rights cannot be as fully protected in an action at law as in a suit in equity.

The bill does not pray for a discovery, and there is no allegation that the account is complicated or intricate. The bill alleges that $4,000 was advanced to Ryan by appellant to pay his laborers and other expenses. There is no necessity for an accounting to establish this fact. It is an easy matter of proof and is clearly within the power of appellant to produce, as the appellant was the one who paid the money. The only other possible grounds for an accounting would be the amount which had been paid by the State to appellee, and how much remained unpaid in the hands of the Department of Public Works and Buildings. This was a matter which was also easy of proof, and involved no complicated account of any kind or character. There was no necessity for an accounting sufficient to confer jurisdiction upon equity.

There is no allegation of the insolvency of appellee, or that appellee would be unable to respond to any judgment which might be rendered against it in an action at law. If appellant has a cause of action against appellee by reason of the facts set out in the bill, we know of no reason why a suit at law could not be maintained, and if any judgment rendered could be collected, there would be no necessity for a suit in equity.

The action of assumpsit was said by Lord Mansfield, in Moses v. Macpherlan, 2 Burr. 1012, to be an equitable action, in which the plaintiff could recover from the defendant so much money as he could show the defendant, ex aequo et bono, ought not to retain. This doctrine was recognized in Taylor v. Taylor, 20 Ill. 650, on page 653, as follows: “It is the well recognized doctrine that the action for money had and received may be maintained whenever the defendant has obtained money of the plaintiff which in equity and conscience he has no right to retain. * * * "When money has been thus received the law implies a promise to pay, notwithstanding there was no privity of contract between the parties.”

In Belden v. Perkins, 78 Ill. 449, it was said: “In an action of assumpsit, for money had and received, the main inquiry is, whether the defendant holds money which, ex aequo et bono, belongs to the plaintiff.” (Barnes v. Johnson, 84 Ill. 95; Wilson v. Turner, 164 Ill. 398; First Nat. Bank of Springfield v. Gatton, 172 Ill. 625.)

In Board of Highway Com’rs v. City of Bloomington, 253 Ill. 164, it was held that an action of assump^ sit under the common counts for money had and received was an appropriate remedy to enforce an equitable obligation arising from the receipt of money by one person which belonged to another and which in equity and justice should be returned; and although the action was in form ex contractu, the alleged contract was purely fictitious and the right of recovery was governed by principles of equity, and no privity of contract was necessary.

In Laflin v. Howe, 112 Ill. 253, it was held that indebitatus assumpsit for money had and received was an equitable action, and lies where one party has obtained money which in equity and good conscience he ought not to be permitted to retain.

In Donovan v. Purtell, 216 Ill. 629, it was held that in an action of assumpsit for money had and received, the main inquiry was whether the defendant held money which, ex cequo et bono, belonged to the plaintiff.

In Cook County v. Davis, 143 Ill. 151, a bill was filed for an accounting against a county treasurer for money held by him and which did not belong to him. A demurrer was sustained to the bill upon the ground that it was filed to enforce a purely legal claim. The decree was affirmed by the Supreme Court, and it was held that the bill was filed to enforce a purely legal demand, and unless some special and substantial ground of equitable jurisdiction was alleged that a court of equity would decline to interfere; that when a court of law is competent to afford an adequate and ample remedy, a court of equity will remand the parties to the court of law, where the right of trial by jury is secured to them; that in actions cognizable at law, the mere fact that an accounting is necessary even when there are cross accounts that such fact is insufficient to give a court of equity jurisdiction, the general rule being that a proper case is presented only when the remedies at law are insufficient.

It clearly appears that the facts stated in the amended bill did not constitute such a cause of action as gave a court of equity jurisdiction, and appellant had an ample and adequate remedy at law. For this reason the demurrer to the bill was properly sustained and the decree will be affirmed.

Decree affirmed.


text:
    The People of the State of Illinois, Appellee, v. United States Fidelity & Guaranty Company, Appellant.
    Gen. No. 7,506.
    1. Justices of the peace — record of complaint. There was a compliance with Cahill’s St. 1923, ch. 38, 1f 687, p. 1261, where transcript of docket of justice showed that complaint was filed and warrant issued, and complaint, warrant and return were attached thereto together with recognizance.
    2. Criminal procedure — waiver of preliminary hearing. The fact that case was set for preliminary hearing before justice on certain date did not prevent accused from waiving such hearing before that date.
    3. Bail — approval of bond by justices. Under Cahill’s St. 1923, oh. 38, T 638, p. 1255, it was not necessary for two justices to approve a bond before accused was committed to jail to await action of grand jury, such approval only being required after accused is committed to jail.
    4. Bah. — docketing scire facias proceeding as criminal case did not change character. Mere fact that clerk docketed scire facias proceeding on recognizance as a criminal case did not change character of proceeding.
    5. Bail — docketing scire facias proceeding under different number. It was immaterial that clerk docketed scire facias proceeding under a different number than that under which indictment was docketed.
    6. Bail — materiality of allegation as to date of crime. In scire facias on a forfeited bail bond given after arrest on a charge of manslaughter, the exact date of the alleged manslaughter was not material as the State’s Attorney could prove any date within the period of the statute of limitations.
    7. Bail — scire facias on default a distinct proceeding from criminal ease. The institution of a suit by scire facias on default of an appearance on a recognizance is for the recovery of a debt, and is a distinct proceeding from the criminal case, and court had jurisdiction at term at which no criminal business could be transacted, under Cahill’s St. 1923, ch. 37, jf 178, p. 1079.
    8. Bail — issuance of alias process. In scire facias on default of appearance on recognizance, if there was service upon defendant but it was not good because made more than five days before first day of term, the court had jurisdiction to continue the case for service and issue alias process without the return showing that defendant could not be found.

      9. Bail — setting aside forfeiture of recognizance discretionary. Court is vested with discretion in the matter of setting aside forfeiture of a recognizance, under Cahill’s St. 1923, ch. 38, 649, p. 1257.
    10. Bail — setting aside forfeiture. Under Cahill’s St. 1923, ch. 38, jf 649, p. 1257, held that the court did not abuse its discretion in refusing to set aside forfeiture of a recognizance because the surety did not have notice of scire facias proceeding, or because defendant was sick and could not appear, or because surety paid expenses of securing return of defendant.
    11. Appeal and ebbob — exhibits attached to briefs. Exhibits attached to brief not introduced in evidence and not made a part of the record or bill of exceptions cannot be considered, but court would not be justified in striking entire brief because of their presence.
    Appeal by defendant from the Circuit Court of Will county; the Hon. Fbedebick A. Hill, Judge, presiding. Heard in this court at the April term, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 11, 1925.
    Rehearing denied September 26, 1925.
    Eugene P. Kealy and Sínden & Hassell, for appellant.
    Hjalmar Rehn, State’s Attorney and Robert W. Martin, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.

Appellant, United States Fidelity & Guaranty Company, made a motion in the circuit court of Will county to set aside a judgment entered by default upon a bond given by appellant to secure the appearance of one Walter Kujawa to await the action of the grand jury. The motion was denied and this appeal has been prosecuted.

Complaint in writing, under oath, was filed before a justice of the peace in Will county charging Walter Kujawa with manslaughter. He was arrested on May 28, 1923, taken before the justice, his hearing was set for June 7, 1923, he failed to give bond, and was committed to jail. On June 2, 1923, he waived his preliminary examination, and his bond was fixed at $10,000, to await the action of the grand jury at the September term, 1923. He entered into a recognizance with appellant, United States Fidelity & Guaranty Company, as surety. On June 4,1923, the recognizance was filed by the justice with the clerk of the circuit court and was docketed as Criminal Case No. 7767. An indictment was returned on September 19, 1923, and was docketed as Criminal Case No. 7772. On September 26, 1923, the defendant failed to appear when his case was called, it was ordered that the bond be forfeited and that a scire facias issue returnable to the first day of the November term, 1923. The scire facias was served on appellant through its agent William H. Clare, but the defendant was not found. The writ and sheriff’s return were filed in the clerk’s office on November 10, 1923. Section 649, eh. 38, Cahill’s St. 1923, p. 1257, requires the sheriff to serve the writ at least five days before the first day of the term. The sheriff made the return ten days before the first day of the term and the trial court held that, under authority of People v. Moore, 143 Ill. App. 382, the service was not good. On December 1, 1923, the court ordered an alias scire facias to issue returnable on the first day of the January term. The writ was served upon Clare as agent of appellant. The sheriff’s return was dated January 7, 1924, and recited that it was served on December 31, 1923, upon the defendant and on December 13, 1923, upon appellant. The writ was returned J anuary 5, 1924. On J anuary 18, 1924, the court allowed the sheriff to change the date of his return from January 7 to January 5, which was without notice to either the defendant or appellant. On January 18, 1924, judgment was entered by default against defendant and appellant for the amount of the bond. Defendant on March 11, 1924, entered a motion to vacate the judgment, which was denied. An appeal was prayed but was never perfected. The petition of appellant to vacate the judgment was filed September 22, 1924, and set up the transcript of the proceedings before the justice, and contained various affidavits, one of which was to the effect that the defendant became sick after he gave the bond and went to Colorado for his health and was there at the time the forfeiture was entered; also that at the time the scire facias was served on Clare as agent of appellant that Clare was sick, in an unconscious condition, and died a few days afterwards. It is not stated that appellant did not have notice of the scire facias, or that a copy of it was not in its possession before the default was entered. The motion of appellant to vacate the judgment was denied and this appeal has been prosecuted.

It is first insisted that the transcript of the docket of the justice attached to the motion to vacate does not show that any complaint or affidavit was filed with the justice before the warrant was issued; that the docket of the justice, or his transcript, must show affirmatively that he had jurisdiction; therefore the justice was without jurisdiction, the recognizance taken was void and could not be made the basis of a judgment.

Section 687, ch. 38, Cahill’s St. 1923, p. 1261, provides that before a warrant is issued that a complaint in writing shall be sworn to and filed with the justice. Section 161, ch. 79, makes it the duty of the justice to record in a well bound book the names of the parties, the amount and nature of the debt sued for, the date and description of the process issued, the name of the officer to whom such process shall be delivered, and throughout the whole proceeding keep a written memorandum thereof. The transcript of the justice is not abstracted, but the record shows that it contains all of the facts required by section 161 to be recorded. Section 161 does not provide that the complaint shall be noted on the transcript. The transcript does show that a complaint was filed and that a warrant was issued. In addition thereto, the complaint, warrant and return thereon were attached to the transcript, together with the recognizance, when the same were filed by the justice in the office of the clerk of the circuit court on June 4. The complaint was in writing, was subscribed and sworn to, contained a concise statement of the offense charged, the name of the person accused, and averred that the complainant had just and reasonable grounds to believe that the assured committed the offense. It was a full compliance with the statute.

It is next contended that on June 2, 1923, the justice could have taken the bond for the appearance of the defendant before him on June 7, but when he issued the mittimus on May 28, 1923, and the prisoner was put in jail, in order.for a recognizance to be valid it would have to be approved by a judge or two justices, otherwise it would be void and the judgment would fail; that the justice lost jurisdiction after the case was continued and set for a day certain, until that day arrived, and it was the duty of the justice, if the defendant desired to be released on bond on June 2, to take a recognizance for his appearance on June 7; that this recognizance could have been approved by the justice, but that he was without jurisdiction on June 2 to hold the defendant to the grand jury, fix his bond and approve the same.

Section 638, ch. 38, Cahill’s St. 1923, p. 1255, provides that when any person shall be committed on a criminal charge that any judge or any two justices may take bail or recognizance in vacation and discharge such prisoner from imprisonment. The defendant was arrested on May 28, 1923, his case was set for June 7, 1923, and he was committed to jail. There can be no question that under section 637, ch. 38, the justice, on May 28, could have approved a bond for the defendant’s appearance on June 7, 1923. After having been committed to jail for want of bond, the defendant, on June 2, waived preliminary hearing, the amount of his bond was fixed, and the bond was given. The mere fact that his case was set for preliminary hearing on June 7 did not prevent him from waiving his preliminary hearing before that date if he saw fit to do so. Under Section 638, it was not necessary for two justices to approve the bond before the defendant was committed to jail to await the action of the grand jury. It was only after he was committed to jail to await the action of the grand jury that the statute required two justices to approve the bond. People v. Argo, 185 Ill. App. 11; Reardon v. People, 123 Ill. App. 81; People v. Cook, 68 Ill. App. 202. The justice had jurisdiction to take the bond and it was in all respects as provided by the statute.

Appellant contends that the record presents a criminal case docketed four months prior to the indictment and prior to the first day of the term at which the recognizance required the defendant to appear; that it is sought to bind appellant by part of a record of things which occurred long prior to a time when there was an opportunity for a breach of the recognizance; that the filing of the scire facias was the beginning of a new suit, was an action for the recovery of a debt, and was distinct from the criminal matter out of which it arose; that there is a fatal variance between the facts and the scire facias as it alleges that the defendant was indicted for a crime committed on September 17, 1923, long after his arrest and the giving of the bond in question.

This contention arises from the fact that on June 4, 1923, when the justice filed the complaint, bond, warrant and transcript in the office of the circuit clerk, that the clerk docketed the ease as No. 7767. The indictment was docketed as No. 7772. The defendant was called in open court to appear in case No. 7772, failed to appear, his default was entered, and a scire facias was ordered to issue. It was not necessary for the clerk of the circuit court to docket the transcript as any particular case on the criminal docket and the mere fact that he did docket it as a criminal case does not change its character. All that was necessary for him to do was to file the transcript of the record and the bond. When the defendant failed to appear after he had been indicted, all that was necessary was that he should be called in open court at the time set for his hearing, and, upon his failure to appear, his bond would be forfeited and a scire facias issue, all of which was done. It is immaterial that the case was docketed under two separate numbers. It all constituted one proceeding and was in all respects as required by the statute. There was no variance in the proof. The mere fact that the indictment alleged that the crime was committed in September, 1923, does not change the fact that the crime was actually committed prior to May 28, 1923. The exact date alleged was not material and the State’s Attorney could prove any date within the period of the statute of limitations. The original and alias writs of scire facias set up the facts exactly as they appear in the record. They were sufficient basis for the forfeiture of the bond and the entry of a judgment against appellant.

It is also insisted that section 178, ch. 37, Cahill’s St. 1923, p. 1079, provides that no criminal business shall be transacted at the November term of the circuit court of Will county; that the scire facias was made returnable to the November term, therefore the court was without jurisdiction to enter any orders therein. The institution of a suit by scire facias on default of appearance on a recognizance is for the recovery of a debt. It is a distinct proceeding from the criminal case out of which it arises and in no sense interferes with the progress or process of the criminal charge. It is a civil proceeding. People v. Phelps, 17 Ill. 200; Peacock v. People, 83 Ill. 331. For this reason the court had jurisdiction at the November term to order an alias writ to issue.

It is the position of appellant that the statute makes no provision for an alias scire facias, but provides that if service is not had at least five days before the first day of the term to which it is made returnable, the sheriff shall make a return showing that the defendant cannot be found; that before an alias writ can issue, a return of not found shall be made; that the scire facias should be returnable to the first day of court after the entry of the order of forfeiture.

In People v. Moore, 143 Ill. App. 382, it was held that if the sheriff returns the writ before the expiration of five days before the first day of the term, the court has no jurisdiction, and any judgment rendered will be void. In the case at bar the original writ was issued, served and returned, but it was returned more than five days before the first day of the term, and for this reason the court held that a new writ should issue. We do not think it was necessary that there should be a return showing that the defendants could not be found before an alias writ could issue. If there was service upon the defendants and it appears that the service was not good the court had jurisdiction to continue the case for service and issue alias process. It was so held in Lane v. People, 76 Ill. 300; People v. Lewis, 209 Ill. App. 3.

Section 649, ch. 38, Cahill’s St. 1923, p. 1257, provides that after judgment is entered in a case of this kind, upon motion and a proper showing that the accused has been apprehended, or surrendered and tried, or has died or been convicted, or imprisoned in some other State, or by the United States, the court may vacate the judgment entered upon the bond and set aside the forfeiture. It is insisted by appellant that the intention of this section is that when a motion is made together with a proper showing that the a,e-cased comes within any of the provisions of the section that the court must vacate the judgment; that the language excludes the idea of any discretion by the court, and for that reason when the motion was made it was the duty of the court to set aside this forfeiture. It is also claimed that, if the court had discretion, it was abused and for that reason this judgment should be reversed.

The statute specifies the grounds upon which the court may vacate the judgment, but we do not think the proper interpretation of that statute is that the word “may” shall be construed as “must.” In People v. Logan County Board Sup’rs, 308 Ill. 543, in laying down the rule to be applied to the use of the word “must,” it was said: “The rule is that the word ‘may’ means ‘must’ or ‘shall’ only in cases where the public interest and rights are concerned, and when the public or third persons have a claim de jure that the power should be exercised.” To the same effect are Fowler v. Pirkins, 77 Ill. 271; Chicago, W. & V. Coal Co. v. People, 114 Ill. App. 75; 36 Cyc. 1160. Under these authorities the court was vested with discretion in the matter of setting aside the forfeiture. It was not the intent of the legislature to require the court to set aside the forfeiture upon a showing of the facts as provided in Section 649.

Nor do we consider the court abused its discretion, or acted arbitrarily, in refusing to open this judgment and set aside the forfeiture. There are two grounds set out in the petition why the judgment should be opened. One is that the agent of appellant upon whom the scire facias was served was sick and he died a day or two after the alias writ was served. It is apparent that it is the intent under this contention to claim that appellant did not have notice of this proceeding. We have examined this record carefully upon that point, and we find that it does not show that appellant did not receive the notice. We are convinced from the entire record that appellant as early as December 17, 1923, had notice that the original and alias writ of scire facias had been issued and served. Notwithstanding this fact, the appellant took no steps to open the judgment until in September, 1924, which was about eight months after the judgment was rendered. The court did not abuse its discretion in refusing to open the judgment upon the ground that the appellant did not have notice of the proceeding.

Nor do we think the evidence is sufficient to set aside the judgment on the ground that the court abused its discretion on the ground that the defendant was sick and could not appear. The affidavit shows that shortly after the bond was given the defendant went to Colorado for his health. It fails to disclose the character or seriousness of the illness. For all that appears it might have been a minor ailment. Nowhere does he claim he could not have appeared in court. He does not give the name of any physician who attended him, or of any person who advised him to make the trip, nor any reason for thinking the case would not be disposed of for some months. He left no forwarding address, nor did he make any inquiry to ascertain whether or not he had been indicted, or when his case would be called for trial. He says that he did not endeavor to evade trial, but nevertheless he disappeared without reasonable excuse, or any proper showing of any necessity for his going. If a defendant can put himself out of the jurisdiction of the court and remain concealed for a period of three months until after the term of court has adjourned, during which he might have been tried, there would be no necessity for his asking for a continuance. He could simply disappear and then set up an unreasonable sickness as an excuse for not appearing. He could forfeit his bond and then have it set aside. There is no showing that justifies the absence of the defendant from the jurisdiction of the court.

It is next contended that the judgment should be set aside for the reason that the appellant paid the expenses of securing the return of the defendant; that the defendant was returned to Will county and was in the county jail from December until the date of his trial; that he was in jail on the date the judgment was entered, and for this reason the forfeiture should be set aside and the judgment vacated. What we have already said applies to this contention. There is no reasonable excuse presented for the failure of defendant to answer under this bond. The bond was given to secure the appearance of the defendant on the first day of the September term, 1923, and continuously "during that term of court. The conditions were not complied with. All requirements of the law with reference to the forfeiture of bonds have been complied with, and we see no reason why the judgment should not be affirmed. ■

A motion has been made to strike the brief of appellee from the files, and this motion has been taken with the case. The main ground for this motion is that three photographic copies of letters are attached to the brief of appellee. The first one is addressed to the State’s Attorney of Will county, dated at Chicago, December 17, 1923, is signed by the superintendent of the claim department of appellant, acknowledges the receipt from Clare of the alias writ of scire facias, and promises to pay the judgment as soon as rendered. The second is to the State’s Attorney dated January 24, 1924, signed by the same person, shows knowledge that judgment had been entered, asks that execution be not issued and that the judgment will be paid. The third is unsigned, is dated September 17, 1924, and states that defendant made a motion to open the judgment which was overruled and asks if the judgment is to be satisfied. The ground for striking the brief is that these three photographic copies were not introduced in evidence and are not a part of the record or bill of exceptions. We think this contention is true and that the three exhibits, not being a part of the record, should not have been attached to the brief of appellee and should have no bearing in the determination of the issues under consideration. If the motion had been to strike these three exhibits from the brief we would have sustained the motion, but as the motion is to strike the entire brief we do not feel justified in sustaining it, and it will be denied.

We find no reversible error and the judgment will be affirmed.

Judgment affirmed.


text:
    John J. Cahill, Appellant, v. Plumbers, Gas and Steam Fitters’ and Helpers’ Local 93, and United Association of Plumbers, Gas and Steam Fitters’ and Helpers’ Local 769, Appellees.
    Gen. No. 7,466.
    1. Parties — common-law rule. In view of Cahill’s St. ch. 28, the rule of the common law on the subject of parties must control unless repealed toy some other statute.
    2. Associations — parties at common law. At common law, a voluntary unincorporated association cannot be sued in its association name, but all of its members must be named as defendants.
    3. Common and civil law — repeal of common law. Under Cahill’s St. ch. 28, providing that the common law should be in force until repealed by legislative authority, it cannot he repealed by judicial decisions.
    4. Associations — common-law rule as to actions against in own name not repealed. Bill of Rights, sec. 19, cannot he construed as repealing the common-law rule that a voluntary unincorporated association cannot he sued in its association name.
    5. Courts — effect of decisions of United States Supreme Court. In respect to questions of general law over which the State court has complete and final jurisdiction, the decisions of the United States Supreme Court are merely persuasive authority and not binding precedents, and if it would be necessary for the highest court of a state to overrule its former decisions in order to conform to the views of the federal tribunal, it is its duty to adhere to its former decisions.
    6. Associations — parties in equity by representation. In equity a suit cannot be brought merely against a voluntary association in its association name, but the suit is brought against all members of a group, by representation, for purposes of equitable convenience, and is permitted only in equitable proceedings.
    7. Appeal and eerob — waiver of defect of parties. If a voluntary association has been sued in its association name and has made no objection in the trial court, the incapacity is waived and the objection cannot be urged on review.
    8. Tbade unions — as party defendant. A trade union, an unincorporated association, cannot be sued in its association name, but all the members must be made parties defendant, in view of Cahill’s St. ch. 28, notwithstanding statutes relating to arbitration: Bill of Rights, sec. 19, Trade-mark laws, sec. 5, Cahill’s St. ch. 140, If 5; Uniform Partnership Act, If 6, Cahill’s St. ch. 106a, jf 6; Practice Act, ch. 110, sec. 13, Cahill’s St. ch. 1.10, If 13; Cahill’s St. ch. 38, If 196.
    9. Pabtnebship — suit against in firm name. Notwithstanding Practice Act, ch. 110, sec. 13, Cahill’s St. ch. 110, If 13, permitting nonresident partnerships to be sued in their partnership names, a suit against a resident partnership must be against the members as partners.
    10. Pabtnebship — labor union as. An unincorporated labor union is not a partnership, in that it is not engaged in business nor operating for financial profit.
    11. Conspiracy — showing as to authority of business agent to call strikes. In action against labor unions for conspiracy to injure plaintiff, declaration, based on theory business agents were duly authorized to do what they did, must affirmatively show scope of their authority, and that conspiracy to injure by calling strikes was entered into within the scope of the authority so set out.
    12. Pleading — conclusions. Allegation that unlawful things were done while agents of labor unions were acting within the scope of their authority was mere conclusion of pleader, where the unlawful acts alleged were not included in the scope of authority as set out by the pleader.
    13. Tbade unions — union as legal entity. Labor unions, being voluntary unincorporated associations, are not legal entities.

      Appeal by plaintiff from the Circuit Court of Lake county; the Hon. Guajee C. Edwards, Judge, presiding. Heard in this court at the December term, 1923.
    Affirmed.
    Opinion filed July 20, 1925.
    Sims, Welch, Godman & De Young, Elam L. Clarke and S. E. Quindry, for appellant.
    Hope Thompson, by special appearance, for appellees.
   Mr. Justice Jett

delivered the opinion of the court.

John J. Cahill, appellant, brought an action in tort in the circuit court of Lake county against the Plumbers, Gas and Steam Fitters’ and Helpers’ Local 93, and Hnited Association of Plumbers, Gas and Steam Fitters’ and Helpers’ Local 769, both local labor unions and a number of individuals as officers, business agents and members of the local unions,

Appellant’s declaration, among other things, alleged that he was engaged in the business of plumbing and heating contracting, with his principal place of business in Evanston, Illinois, and that he was engaged in the performance of a contract with Edward B. Jones for the installation of the plumbing fixtures and heating system in the residence which was then being erected by Jones in Highland Park, Illinois; that defendant Daniel Short, acting- on behalf of himself and as the duly authorized agent of the Hnited Association of Plumbers, Gas and Steam Fitters’ and Helpers’ Local 769 and other defendants, and the defendant John P. O’Brien, acting for and on behalf of himself and as the duly authorized agent of the Plumbers, Gas and Steam Fitters’ and Helpers’ Local 93 and other defendants, conspired to induce and coerce Jones, by threats, intimidations and the calling or procuring of strikes, to breach the building agreement between him and .appellant unless appellant would withdraw from his affiliation with a certain citizen’s committee and would agree to thereafter employ in the City of Chicago, in the county of Cook, union or closed-shop men only; that O’Brien and Short, in furtherance of the conspiracy and while acting within the scope of their authority as such agents, wilfully and maliciously, by threats, intimidations and procuring a strike of union men employed on said building, induced, coerced and compelled Jones to breach the building contract and to refuse to permit appellant to complete the same, to the damage of appellant. The declaration is based upon the theory that the business agents who were representing the local unions were duly authorized to do what they did, and not only conspired but carried out their conspiracy against appellant while acting within the scope of their authority, and thereby bound the principals for whom they were authorized agents.

; ,.. The two local unions filed demurrers to the declaration, in which demurrers two points were raised: First, that the local unions, being voluntary, unincorporated associations, are not legal entities, and cannot be made parties defendant in their association names in a suit at common law; and second, that the declaration does not set out facts constituting a cause of action against the local unions. ,' The court sustained the demurrers of the two local unions, and appellant then took a nonsuit as to the individual defendants, and having stood by his declaration, the suit was. dismissed and judgment for costs was rendered against him.

An appeal was prayed and perfected to the Supreme Court on the ground that a constitutional question was involved. The Supreme Court being of the opinion that no constitutional question was raised by the pleadings the cause was transferred to this court.

The question raised on this record by the demurrer to the declaration is whether or not this suit can be maintained against the defendants, unincorporated associations, in their association or union names.

By reason of chapter 28 of the Revised Statutes of Illinois [Cahill’s St. ch. 28] the common law is the rule of decision in this State in proceedings of this character and should be considered in full force until repealed by legislative authority. The question of parties to a lawsuit is always one of the first considerations, not as a mere matter of procedure, but as one of the basic elements of litigation going to the jurisdiction of the court. The rule of the common law on the subject of parties must control in this State, under the foregoing statute, unless the rule has been repealed by the legislature.

At common law, a voluntary, unincorporated association cannot be sued in its association name. In 5 Corpus Juris, p. 1365, the rule is stated as follows:

“Since an unincorporated association has no legal entity distinct from that of its members it cannot at common law maintain an action in its own name, but must sue in the names of all of the members comprising it, however numerous they may be.”

On page 1368, in said volume, the following rule is announced:

‘ ‘ The declaration in an action at common law by an unincorporated association should set out the names of all the individuals who are members of such association, and this also seems to be necessary in a bill in equity by such associations, except where the suit is brought by a part of the members on behalf of the association.”

On page 1369, the same authority says:

“An unincorporated association cannot, in the ab-sense of statute, be sued in its society or company name, but all the members must be made parties, since such bodies have, in the absence of statute, no legal entity distinct from that of their members. As just intimated, the members may be sued collectively, provided there is a joint liability.”

In 30 Encyl. of Law and Prac. p. 132, it is said:

“The rule at common law and in equity required that all parties to an action should appear in it, as plaintiff or defendants, and by their individual names. From this rule equity procedure, in the interest of convenience, permitted a number of deviations, and among them the two following: One or more persons might sue or defend for all ‘where the question is one of a common or general interest,’ or when ‘the parties are very numerous and it is impractical to bring them all before the court. ’ ’

In O’Connell v. Lamb, 63 Ill. App. 652, it is said:

“The declaration shows that the obligee named in the bond is an unincorporated society, composed of many persons, of whom a few bring this action at law, on the bond, in their own names for the use of all the members. By the rule at common law this is forbidden. It can be maintained only in the names of all, however numerous. There is no authority, so far as we are advised, for supposing that it has been abrogated or modified in this State. We have considered the cases specially cited, but time would not permit even a cursory examination of the many noted in 22 Am. & Eng. Enc. of Law, 806-7, and appended to the case of Phipps v. Jones, 20 Pa. St. 260, as reported in 59 Am. Dec. 711. It must suffice to say that we discover no difference of opinion as to the common-law rule, and that such of the cases as were not in equity, where it is different, were under statutes expressly authorizing them. If the law of Illinois did not empower the plaintiffs to maintain this action in their own names alone, of course the constitution of the association could not do it.”

The same doctrine is announced in Merchants Underwriters v. Parkhurst-Davis Mercantile Co., 131 Ill. App. 617-620.

In Baskins v. United Mine Workers, 150 Ark. 398, 234 S. W. 464, which is a case growing out of the same subject matter as was involved in the Coronado Coal Co. case in the federal court, the court said:

“There is no principal better settled than that an unincorporated association cannot, in the absence of a statute authorizing it, be sued in its society or company name, but all the members must be made parties, since such bodies have, in the absence of statute, no legal entity distinct from that of their members.”

St. Paul Typothetæ v. St. Paul Bookbinders’ Union, 94 Minn. 351, is a suit by one unincorporated association and a corporation, against another unincorporated association and the members thereof, to recover damages for breach of contract. Demurrers were interposed, and the court at page 356, among other things, said:

“The Typothetæ and Bookbinders’ Union, so far as their legal status is concerned, occupy the same position. Both are unincorporated voluntary associations, and the principles of law applicable generally to unincorporated clubs and societies apply to each. The position such organizations occupy under the law is a question upon which the courts are not fully agreed. It is generally acknowledged that they are sui generis, but the courts have had difficulty in agreeing upon the legal principles to apply to them. # * *
“But whatever may be the law applicable to such associations generally, there is one respect in which the authorities are agreed, and that is that at common law they are not, whether organized for business or other purposes, entitled to recognition in the courts in their association name. It is well settled that, in the absence of a statute otherwise providing, to be entitled to conduct judicial proceedings in court, a party litigant must be either a natural or artificial person. The rule is correctly stated in 22 Ency. PI. & Prac. 230, where, in speaking of unincorporated societies such as those here involved, it is said that such societies cannot maintain an action in their association name, but must sue in the name of the individuals composing them, however numerous they may be. Such societies, in the absence of statutes recognizing them, have no legal entity distinct from that of their members. The rule is followed by an unbroken line of authorities, though a different rule has been applied in many of the courts in actions purely of an equitable nature.”

Many authorities are cited to support the above rule.

It is the contention, however, of appellant that the common-law rule has been repealed by implication. The legislature has not enacted any statute which purports to repeal or modify the common law on this subject, as many other States have done. The effect of the argument of appellant is that at common law he cannot maintain his suit, and his whole contention in this case, to our minds, rests upon one question: Has the common law been repealed by implication?

Chapter 28 of the Revised Statutes provides that the common law should be in force until repealed by legislative authority. It cannot be repealed by judicial decisions.

Appellant insists: First, that an exception to the common-law rule has grown up from the very necessities of the cases until it has been adopted by court decisions as a rule.

Second, that the bill of rights effects a repeal of the common-law rule on this subject.

Third, that certain statutes have so far recognized the existence of labor unions as to constitute a repeal by implication of the common law in this respect.

If any court decisions in Illinois have adopted the rule urged by appellant they have done so without lawful authority and are to that extent erroneous. Section 19 of the Bill of Rights cannot be construed to have the effect for which appellant contends. The statutes cited and relied upon do not repeal, directly or by implication, the common-law rule contended for by appellees.

We will briefly examine the cases relied upon by appellant in support of his position. United Mine Workers v. Coronado Coal Co., 259 U. S. 344, was a suit in the federal court brought under the Sherman Act, which statute specifically includes “associations” among those who may be sued. The decision did not rest solely upon that provision of the statute however. The reasoning of the U. S. Supreme Court in the Coronado case is that the growth, power and statutory recognition of labor unions has brought about a condition which renders it necessary that they be regarded as legal entities in suits for damages. That court then proceeds to establish a new and far-reaching rule in federal courts. (The Coronado case does not repeal the common-law rule in Illinois. It does not set a precedence for Illinois courts nor does it furnish the slightest authority in support of appellant’s claim that the common-law rule in Illinois has been repealed by implication. The federal government has never enacted a statute, so far as we know, as Illinois has done, making the common law the rule of decision in federal courts until repealed by legislative authority.^

In the Coronado case the following language is found:

“Undoubtedly, at common law, an unincorporated association of persons was not recognized as having any other character than a partnership in whatever was done, and it could only sue or be sued in the names of its members and their liability had to be enforced against each member.”

Moreover, it is the rule in Ilhnois that in respect to questions of general law over which the State court has complete and final jurisdiction, the decisions of the Supreme Court of the United States are merely persuasive authority and not binding precedents, and if it would be necessary for the highest court of a State to overrule its former decisions in order to conform to the views of the United States Supreme Court on such questions it is its duty to adhere to its former decisions. Rothschild & Co. v. Steger & Sons Piano Mfg. Co., 256 Ill. 193-205.

Guilfoil v. Arthur, 158 Ill. 600, was a suit in equity. Courts of equity have long recognized, as an exception to the rule in suits at lam, that when suit is brought in equity against a group of persons composing a voluntary association, service may be had on representative members or officials of the association who are sued on behalf of themselves and of all other members, In equity, a suit cannot be brought merely against a ^voluntary association in its association name. There is no assumption of a legal entity; it is a suit against all members of a group, by representation, for purposes of equitable convenience, and is permitted only in equitable proceedings. This case in our judgment does not support the position of appellant.

Fitzpatrick v. Butter, 160 Ill. 282, likewise was a suit in equity seeking to collect a judgment rendered in a former suit at law. The court was speaking from an equity viewpoint and all it said was affected by the equitable nature of the suit. Furthermore, it has been frequently held that if a voluntary association has been sued in its association name and has made no objection in the trial court the incapacity is waived and the objection cannot be urged on review. Franklin Union No. 4 v. People, 220 Ill. 355-364. Neither can the question of incapacity be raised in a collateral proceeding and these propositions apply to the Fitzpatrick case and eliminate it entirely as an authority for the position urged by the appellant.

Dugan v. International Ass’n, 222 Ill. App. 308, turned on the question of estoppel. Like the Fitzpatrick case the association had been operating as a legal entity; the suit was on contract and there appeared to be some doubt as to whether the association was not incorporated in another State. The court relied upon the Fitzpatrick and the Guilfoil cases referred to above. What has been said about the Fitzpatrick case disposes of this case.

Fields v. United Brotherhood of Carpenters & Joiners, 60 Ill. App. 258, and Independent Order Mut. Aid v. Paine, 122 Ill. 625, are of the same character as the Dugan case. In none of them is it held that a labor union can be sued in tort in its association name. The two cases rest solely on the doctrine of estoppel, and are suits on contract which the defendant association had entered into as if it were a legal entity.

Anderson & Lind Mfg. Co. v. Carpenters’ List. Council, 308 Ill. 488, was a contempt proceedings on the equity, side of the docket. No objection had been raised in the original suit as to the capacity of the defendant and the court held that the objection could not thereafter be raised in contempt proceedings.

The rule announced in Ruddy v. United Ass’n of Journeymen Plumbers, etc., 79 N. J. L. 467, 75 Atl. 742, cannot be regarded as authority in sustaining appellant’s contention because it does not appear that any objection was raised as to the capacity of defendant unions, and, under the general rule, the objection was waived.

Carlson v. Carpenter Contractors’ Ass’n of Chicago, 305 Ill. 331, was a suit in tort but no objection ' was at any time raised as to the capacity of the parties.

Appellant also insists that section 19 of the Bill of Bights effects a repeal of the common law by implication, on the ground that to enforce the common law would result in a failure of justice.

Aside from the fact that section 19 of the Bill of Bights does not purport to repeal any law, and by all the rules of statutory construction could not be interpreted as appellant contends, it is to be considered that in all these years it has never been so interpreted, and that to so interpret it now would open the doors to much uncertainty and lead to confusion without limit.

Appellant also calls attention to certain statutes which he contends have the effect of repealing the common law by implication. The first relates to a board of arbitration in disputes between employers and employees, one of whom shall be a member of “some labor organization.” The statute also provides that the president or chief executive officer of every labor organization should take certain steps in case of a strike or lockout. The board acts, however, only on the voluntary application of either the employer or a majority of the employees. The most that can be claimed for this statute is that it recognizes the existence of labor organizations. The fact of recognition falls far short of repealing the common law which has always recognized the existence of voluntary associations as such.

The second statute cited is that relating to trademarks. Appellant contends that this statute “recognizes associations and unions as organized entities with power to proceed by suit,” etc. This statute does not sustain the theory of appellant. The reading of it refutes the position assumed by him. Section 5 of said Act [Cahill’s St. ch. 140, ft 5] states:

“In all cases where such association or union is not incorporated, suits under this act may be commenced and prosecuted by any officer or member of such association or union on behalf of and for the use of such association or union.”

This is a clear and definite recognition of the incapacity of a voluntary association to sue as an association. It sustains appellees’ position in this case, being a positive recognition of the common law on this subject.

Appellant also cites the Uniform Partnership Act. We are unable to see wherein this act sustains the theory of appellant. Paragraph 6 of said Act [Cahill’s St. ch. 106a, 6] carefully and concisely defines the partnership under consideration, and strictly limits the provisions of the statute to such a partnership.

Section 13, ch. 110, being the Practice Act [Cahill’s St. ch. 110, f 13], is cited which provides that a partnership of which the members are all nonresidents may be sued in the partnership name. By the ordinary rules of interpretation this would mean that a resident partnership cannot be so sued.

. It is the universal rule that a suit against a resident partnership must be against the members, as partners. The statutes recognize the partnership, as it recognizes the voluntary association or labor union; but they also recognize the common-law rule as to parties in suits at law.

The labor union is not a partnership, in that it is not engaged in business nor operating for financial profit. Certainly, if a partnership can only be sued by naming the members, much more is this true of the labor union.

It is the well-recognized law in Illinois that an indictment for embezzlement, larceny or burglary, which lays the ownership of the property in a partnership, or an unincorporated company, is bad on motion to quash.

In People v. Picard, 284 Ill. 588, 591, the rule is stated (and the same rule may be found in many other Illinois cases) as follows:

“The recognized and well-settled rule is that property vested in a body of persons ought not to be laid, in an indictment charging a party with the larceny of the same, as the property of that body unless such body is incorporated but should be described as belonging to the individuals composing the company.”
The legislature did in 1909 (Cahill’s St. ch. 38, % 196) pass a special statute to protect fraternal, beneficial societies, corporations and associations, in which it is provided that an indictment would be sufficient if it alleged title to funds or property embezzled or stolen, “to be in the supreme lodge, grand lodge or subordinate lodge thereof, by the name by which the same is commonly known.”

The enactment of this statute was a clear recognition of the rule above stated.

As the declaration is based upon the theory that the business agents who were representing the local unions were duly authorized to do what they did, it must affirmatively show the scope of the agents’ anthority, and that the act complained of was done by said agents within the authority so set out.

The declaration alleges that the local unions operate under a constitution and by-laws, but does not quote any portion of them. It mentions certain officers and alleges that in the conduct of the business of the local they act as agents for and on behalf of the local; that among the duties of the officers, and particularly the business agents, they have been given authority by the local and by the individual members “to.call and procure the calling of strikes within the County of Lake, State of Illinois, when and where it may be to the interest, financial or otherwise, of said local 93 and the individual members thereof, by way of strengthening said local 93 and its similar affiliated organizations throughout the United States.” After setting forth the authority, it is then alleged that while acting within the scope of authority the two business agents maliciously conspired to cause breach of appellant’s contract and otherwise unlawfully to injure him.

It appears that the allegation that unlawful things were done while the business agents were acting within the scope of their authority is a mere conclusion of the pleader. He sets out the scope of the authority and it does not include any malicious or unlawful act, nor any act intended to cause breach of a contract, or otherwise unlawfully to injure any person.

In conclusion we are of the opinion that the local unions, being voluntary, unincorporated associations, are not legal entities and cannot be made parties defendant in their association names in a suit at law; the declaration is also subject to the charge that it does not set out facts sufficient to constitute a cause of action against the local unions. The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Adam H. Bolender, Appellant, v. Frank S. Pearce, Administrator of the Estate of Christopher Sutton, Deceased, Appellee.
    Gen. No. 7,463.
    1. Sales — sale, consignment, bailment distinguished. Where a ring was delivered at a certain price, and could be resold or returned, held that the transaction was not a bailment, consignment for sale nor contract of sale on trial or approval, but was a contract of “sale or return.”
    2. Sales — contract of sale or return defined. A contract of sale or return is an agreement by which goods are delivered by a dealer to be paid for at a certain rate, if sold by the party to whom they are delivered, and if not sold to be returned within a reasonable time.
    3. Sales — results of return or failure to return. If vendee in contract of sale or return gives back the goods, the contract of sale is at an end, but, if he does not, the sale becomes absolute and the price of the goods may be recovered in an action for goods sold and delivered.
    4. Sales — time for return. Under a contract of sale or return, if no time is specified within which the return is to be made the law implies a reasonable time.
    5. Sales — death of vendee under contract of sale or return. Where goods are delivered to an individual under a contract of sale or return and the vendee dies, opportunity for exercise of his power to resell came to an end and it is the duty of his personal representative to immediately return the goods or become liable for the price of the goods.
    6. Sales — demand for return. Where goods were delivered to an individual under a contract of sale or return and the vendee died, if any demand upon his representative for return of the goods was necessary, the filing of a claim against the estate was a sufficient demand.
    Appeal by plaintiff from the Circuit Court of Winnebago county; the Hon. E. D. Reynolds, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed July 27, 1925.
    Early & Early, for appellant.
    Garrett, Maynard & Fell, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

In the probate court of "Winnebago county, Adam H. Bolender, appellant, according to his claim therein filed on November !,'4922, sought to charge the estate of Christopher' Sutton, deceased, for ‘ ‘ a diamond ring received by ¡decedent May 14,1921, for sale on account of claimant and retained by decedent, $550.00.” The claim was allowed and upon a hearing in the circuit court on appeal, the trial court, at the conclusion of all the evidence, gave to the jury a peremptory instruction and in obedience thereto the jury returned a verdict in favor of appellee, upon which judgment was rendered and this appeal followed.

The evidence discloses that appellant during 1920, 1921 and 1922 was a retail jewelry dealer and appellee’s intestate was an “exchange manager” in charge of one of the eight exchanges at Camp Grant. Hobert Hooker was an employee of appellant and looked after the merchandise at the Camp which appellant had there for sale. He testified that on May 14, 1921, deceased examined some diamonds which appellant had there, selected a 1% carat stone and a ring mounting which he liked and in accordance with his request the diamond was mounted and the ring made to fit his finger. The following day he called and received the ring signing at that time a “sales ticket” and in reply to the question of deceased as to what the ring was going to cost him, appellant told deceased $550. Hooker further testified that deceased said “he was going to try and sell the ring and when he sold it he would pay for it and if he did not sell it he would return it, as he wanted to purchase a larger stone and intended to buy a larger one as soon as he sold and paid for this one,” to which arrangement appellant assented. Edward E. Allen, another salesman of appellant, testified to substantially the same as Hooker. It further appeared from their testimony that although appellant was to receive therefor only $550 . and the deceased was to have all over that amount he could get, the actual retail price of the ring was $650; that Sutton never sold the ring but wore it himself, never paid for it and that his widow had it after his death, which occurred on September 19, 1922.

It is the contention of appellee that the transaction as disclosed by the foregoing facts constituted a bailment or consignment for sale; that no title to the ring ever passed to Sutton and that appellant has misconceived his appropriate remedy of replevin. Appellant contends that the transaction was a contract of sale or return and that title to said ring did pass to Sutton and the ring not having been sold by decedent during his lifetime and not having been returned to appellant by the administrator, the estate is liable for its agreed value.

The transaction was not a bailment nor was it a consignment for sale, nor was it a contract of sale on trial or approval. It was a contract of “Sale or Return.” In 24 Ruling Case Law, p. 425, sec. 720, it is said:

“A very common form of contract is that known as ‘sale or return,’ by which property is sold, but is Hable to be returned to the seller at the option of the buyer. In this class of cases the transaction vests title immediately in the buyer, who has the privilege of rescinding the sale, and until this is exercised, the title remains in him. La such cases, the property in the goods passes to the buyer, the price is fixed at the time of the sale and deHvery, the buyer deals with the goods as his own, disposes of them as he pleases for cash or on credit, is under no obligation to give any account of his disposition of them and is only liable to pay for them at a price fixed before hand, without any reference to the price at which he sells them.”

There is no conflict in the evidence in this case, no witnesses were called by appeHee, and from the testimony of the two witnesses hereinbefore referred to, it appears that the diamond, the mounting and the size of the ring were all selected and designated by Sutton. He received it from appeUant and the arrangement was that he should take it at-the fixed price of $550; that he could deal with it as his own; that he could dispose of it as he pleased either for cash or credit; that he was not required to give any account of its disposition and was only liable to pay appellant the fixed price of $550 without any reference to the price at which he may have sold it. In the event that he did not sell it he was to return it. The sales ticket which Sutton signed gave his name as purchaser and gave the date and description of the article. At the time he received it, the arrangement was that he was going to try to sell it and when he had sold it he would pay the stipulated price for it and if he did not sell it he would return it.

A contract of sale or return is an agreement by which goods are delivered by a dealer to be paid for at a certain rate, if sold by the party to whom they are delivered and if not sold to be returned within a reasonable time. If the vendee returns the goods, the contract of sale is at an end. If he does not, the sale becomes absolute and the price of the goods may be recovered in an action for goods sold and delivered. If no time is specified within which the return is to be made the law implies that they are to be returned within a reasonable time. In such cases the property in the goods passes to the purchaser subject to an option in him to return them within a fixed or reasonable time. House v. Beak, 141 Ill. 290-300. In this case, goods were ordered at an agreed price. The articles were delivered and the buyers were to pay for the ■ goods they sold when they sold them and what were not sold they would return and the court held that as no time for the return was fixed, a reasonable time was implied and inasmuch as the defendants kept the goods without offering to return them they were liable.

A contract constitutes a sale when the consignee agrees to pay a certain price for consigned goods as he sells them and there are no restrictions or limitations imposed upon Ms right to sell the goods or as to the selling price and this is true even though the contract contains a clause giving the consignee the right to return the unsold goods. L. R. A. 1917 B 643; House v. Beak, supra.

Had Sutton unconditionally and unequivocablv agreed to return this ring then this transaction would undoubtedly have been a bailment. It is when the identical thing delivered is to be returned or when the identical tMng delivered is to be restored, though in an altered form, the contract is one of bailment and the title to the property is not changed but where there is no obligation to restore the specific article and the receiver is at liberty to return another tMng of equal value or the money value thereof, he becomes a debtor to make a return and the title to the property is changed — it is a sale. Chickering v. Bastress, 130 Ill. 206-215. In the instant case Sutton had the option to either return the ring witMn a reasonable time or pay therefor the money value thereof according to the agreement of the parties, hence the transaction was not a bailment. Appellant reposed trust and confidence in Sutton by permitting him to have the ring under such terms. Appellant did not retain the right to demand the return of tMs -ring at any time and hence it cannot be said that this transaction was a consignment of personal property for sale only. By tMs transaction title was vested immediately in Sutton and remained in him until divested by him by his exercising his privilege to return it. House v. Beak, supra.

Appellee insists that no demand was ever made for the return of this ring and in the absence of such demand appellee was under no obligation to return it. When Sutton died there was no longer any opportunity for the exercise of Ms powers or ability as a salesman. The representative of his estate knew the terms of the transaction and it was his duty to forthwith return the ring or pay appellant its agreed value. In our opinion if a demand was necessary the filing of this claim in the probate court was a sufficient demand.

It was error for the trial court to have taken this case from the jury by peremptorily instructing it to find the issues for appellee and for so doing the judgment must be reversed and- the cause remanded.

Reversed and remanded.