text:
    Charles J. Hustis et al. v. H. S. Pickands et al.

      Brokers — Purchase of Mining Stock — Action for Commissions — License —Ordinance—Pleading.

      1. Brokers in mining stocks are embraced within an ordinance of the city of Chicago, which renders it unlawful for any person to exercise, within the city, the business of a money changer or banker, broker or commission merchant without a license therefor.
    2. A broker who has purchased mining stock for a third party, in violation of such ordinance, without a license, can not maintain an action for commissions.
    [Opinion filed Sept. 18, 1888.]
    In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    This was an action by plaintiffs in error against the defendants in error to recover for commissions alleged to have been earned by the plaintiffs while acting as brokers, within the corporate limits of the city of Chicago, for the defendants, in the purchase of certain mining stocks.
    The defendants filed the plea of the general issue and affidavit of merits, also a special plea, to which the plaintiffs interposed a demurrer. The court overruled the demurrer, whereupon, the plaintiffs electing to abide by their demurrer, final judgment was rendered, from which plaintiffs bring error to this court, and assign for error the overruling of said demurrer. The said special ¡ilea is as follows:
    “ And for a further plea in this behalf the said defendants, by Frederic Hllmann, their attorney, say that the said plaintiffs ought not to have maintained their aforesaid action thereof against them, because they say that, at the time of the making of the said several supposed promises and undertakings in the said declaration mentioned, if any such were or was made, the plaintiffs were carrying on and exercising, within the corporate limits of the city of Chicago, in said Cook County, to •wit, at the county of Cook, the business of brokers by the co-partnership name and style of Hustis, Conglan & Hay; and the defendants in fact aver that, at and prior to the time aforesaid, there was and had been, and from thence hitherto has been and still is in full force and effect in said city of Chicago, in the county aforesaid, an ordinance theretofore duly passed by the city council of said city, duly approved by the mayor of said city, and duly published according to law, in the words and figures as follows, to wit: “Beit ordained by the Gity Council of the City of Chicago:

    “ Section 1. It shall not be lawful for any person to exercise within the city the business of a money changer or banker, broker or commission merchant, including that of merchandise, produce or grain broker, real estate broker and insurance broker, without a license therefor.
    “Section 2. A merchandise, produce or grain broker is one who, for a commission or other compensation, is engaged in selling or negotiating the sale of goods, wares, merchandise, produce or grain belonging to others.

      “ Section 3. A real estate broker is one who, for commission or other compensation, is engaged in the selling of or negotiating sales of real estate belonging to others, or obtains or places loans for others on real estate.
    “ Section 4. An insurance broker is one who is engaged in procuring, or places insurance on buildings, vessels or other property for others.

      “ Section 5. There shall be collected annually, for every license granted for any banker, the sum of §100, and there shall be collected annually, for every license granted for any broker, including any merchandise, produce or grain broker or commission merchant, or money changer or broker, the sum of $25; and there shall be collected annually, for any license granted any real estate broker, the sum of $25; and there shall be collected annually, for every license granted for any insurance broker, the sum of $25.
    “ Section 6. That any person violating any provision of this ordinance shall be subject to a penalty of not less than §25 nor more than $100 and to the same penalty for any subsequent violation thereof.”
    “And the defendants further aver that, at the time of the making of the said several supposed promises and undertakings in said declaration mentioned, the said plaintiff had not obtained, and did not then, nor theretofore nor thereafter have the license specified in said ordinance or any other license authorizing them, or either of them, to exercise said business so by them carried on as brokers within the city of Chicago, in said county of Cook; but, on the contrary thereof, said plaintiffs then were, theretofore had been, and still are exercising the said business as brokers within the said city of Chicago, without having obtained any license therefor, and in violation of the provisions of said ordinance.
    “And these defendants further aver that the sum or sums of money sought to be recovered in this action by said plaintiffs from these defendants are alleged to be due to said plaintiffs from these defendants for commissions or compensation alleged to have been earned by said plaintiffs as brokers in purchasing certain stocks for these defendants, and at their alleged request within the said city of Chicago, at the time aforesaid.
    “And this the defendants are ready to verify, wherefore they pray judgment if the plaintiffs ought to have their aforesaid action against them,” etc.
    Mr. Jksse B. Baeton, for plaintiffs in error.
    Plaintiffs in error insist, first, that the business of stock broker is not included in the ordinance, and that, therefore, plaintiffs were not required to take out a license; second, that the question of whether or not plaintiffs had a license, even though positively required to take out one, was wholly between them and the municipality, and could not in any way affect the relations between plaintiffs and defendants. There being nothing unlawful in any of the occupations enumerated in the ordinance, either in themselves or as the result of statutory inhibition, there is nothing in the nature of the business sought to be licensed which would vitiate the contract between tlie broker and his customer under which the broker could claim remuneration for his services.
    All enactments should be construed according to their intention, and the intention of this ordinance is manifest. It aims to exact a license fee from every banker and every money cln.nger, whose occupations are so well known as to require no definition, and from every merchant, produce or grain broker, every insurance broker and every real estate broker, and that no guilty man may escape, it was made clear by sections 2, 3 and 4, what was intended to be included. Had it been intended to require of a stock broker a license, his business would have been more particularly described than the others, for a stock broker is a rara avis in Chicago, while the others are more numerous than the followers of any other business in. the city.
    Assuming, however, that plaintiffs in error violated the provisions of the ordinance when they acted as brokers in buying mining stocks for the defendants, yet they are entitled to recover their brokerage from the defendant. The statute authorized the city to tax, license and regulate, and if by the ordinance it has taxed and licensed this particular business, it has not declared it unlawful to pursue it without paying the tax and taking out the license, and is powerless to make it unlawful even if it tried.
    It is absurd to say that the same act committed in the same manner, with the same publicity, in the same commonwealth, is unlawful on one side of a municipal boundary and lawful on the other side in any sense in which the word unlawful can be used when an act so characterized would vitiate a contract based on the act. While it may be said that the authorized ordinance of a municipality has the same effect as an act of the legislature and be good as a general principle of law, yet the municipality can not exceed the powers of the legislature and the legislature could never say that the same consideration for a contract was in one place in the State unlawful and the contract void, and in another place was lawful and the contract valid. The following cases hold that a penalty-imposing ordinance in no respect enters into the civil relations between the person liable to the penalty for an infraction of the terms of the ordinance and other persons: R. R. Co. v. Ervin, 89 Pa. St. 71; Henry v. Sprague, 11 R. I. 456; Chambers v. Trust Co., 1 Disney, (Ohio), 336; Van Dyke v. Cincinnati, 1 Disney, 532; Jenks v. Williams, 115 Mass. 217; Peck v. Austin, 22 Texas, 261; See Royal v. Virginia, 116 U. S. 572; Insurance Co. v. Polleys, 13 Pet. 157.
    There is yet another reason why this plea is bad, and that is on account of a very wise and just distinction laid down in the English case of Smith v. Mawhood, 14 M. & W. 452, which is, that when it is the intention solely of the legislative body to make the act illegal and to prohibit it, then the act can not be a good consideration for a contract; but when the sole or main object is to raise revenue, the act is not illegal in the sense that a contract based upon it is void, and can not be enforced.
    Mr. Fbedebic Ullmann, for defendants in error.
    An action for commissions or brokerage for negotiating the sale of stocks belonging to other parties can not be maintained by brokers who have" not obtained a license to do business as brokers under the city ordinance set out in the plea. The weight of authority is that the imposition of a penalty implies a- prohibition.
    “When an incorporated town or city has been invested with power to pass-an ordinance by the legislature for the government or welfare of the municipality, an ordinance enacted by the legislative branch of the corporation, in pursuance of the act creating the corporation, has the same force and effect as a law passed by the legislature, and can not be regarded otherwise than a law of and within the corporation.” Mason v. Shawneetown, 77 Ill. 533, 537; Wright v. C. & N. R. R., 7 Ill. App. 438; Hopkins v. Mayor of Swansea, 4 Mills & W. 640; Heland v. City of Lowell, 3 Gray, 408.
    Where a statute enacts a penalty for carrying on a particular business without a license, no action can be maintained on a contract made by one who violates the statute, even though the statute contains no prohibition. Bensley v. Bignold, 7 Eng. Com. Law, 188; Downing v. Ringer, 7 Mo. 585; Ætna Ins. Co. v. Harvey, 11 Wis. 412; Williams v. Cheney, 3 Gray, 222; Jones v. Smith, 3 Gray, 500; Cincinnati Mut. Health Assurance Co. v. Rosenthal, 55 Ill. 85 ; Fridley v. Bowen, 87 Ill. 151; Penn v. Bornmann, 102 Ill. 523 ; Banking Co. v. Rautenberg, 103 Ill. 460; Farrow v. Vedder, 19 Ill. App. 305 ; Cope v. Rowlands, 2 M. & W. 149; Johnson v. Hullings, 103 Pa. St. 498.
   McAllister, J.

The ordinance set out in the special plea has been adjudged to be legal and valid. Braun v. Chicago, 110 Ill. 186. While the language of the ordinance is somewhat peculiar, yet we are inclined to the. opinion that it was intended to and does fairly embrace and apply to brokers in stocks. If we are right in that conclusion then it follows, as" we thinkfrom the doctrine of the prevailing current of authorities, that the plaintiffs, being unlicensed as brokers at the time of the purchase by them as such, of the stock in question, their act was unlawful and they can not recover commissions, so that the plea must be held to be good and the judgment affirmed.

Judgment affirmed*


source: Caselaw Access Project

author: Moran, P. J.

license: Public Domain

text:
    Amos W. Cravener v. Prescott G. Hale.

      Contract to Sell Lands — Condition—Construction—Abstract of Title— Rescission.
    1. Where a vendor, by agreement, has undertaken to furnish the vendee “ an abstract of title showing good title and power and authority to sell and convey,” the deposit made by the latter to be returned and the contract determined in case of failure to show good title, and the abstract furnished shows such title, although in fact it is in dispute, the vendor can not place the vendee in default by the tender of the deed.
    2. In the case presented, it is held: That the contract is to be construed
      most strongly against the vendor; that he did not bring himself within the condition authorizing a rescission; and that he could not rescind for nonperformance by the vendee, as he was not himself in a condition to perform.
    3. As a general rule a contract can not be determined or rescinded by a party to it unless he is in a position to demand a specific performance.
    [Opinion filed September 18, 1888.]
    Appeal from the Superior Court df Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Messrs. H. T. & L. Helm, for appellant.
    Mr. James S. Murey, for appellee.
   Moran, P. J.

On December 24, 1886, a contract in writing was entered into between appellant and appellee, as follows :

“Articles of agreement, made this 24th day of December, A. D. 1886, between Amos W. Cravener, party of the first part, and Prescott G. Hale, as trustee under the last will and testament of Matilda Hale, deceased, party,of the second part.
“ Witnesseth: That if the party of the first part shall first make the payment and perform the covenants hereinafter mentioned on his part to he made and performed, the said party of the second part covenants and agrees at the time hereinafter stated to convey and assure to the said party of the first part in fee simple, clear of all incumbrances whatever, by a good and sufficient warranty deed, the lot, piece or parcel of ground situate in the County of Cook and State of Illinois, known and described as the n orth one-half (J) of the northwest one-quarter (J) of section twenty-three (23), townshi p thirty-eight (38) north, range thirteen (13), east of the third principal meridian, except the east fifty (SO) feet thereof, heretofore taken for a railroad right of way and' subject also to all streets, alleys and highways, and subject also to all taxes? assessments or other impositions legally levied or imposed upon said land subsequent to the year A. D. 1886.
“ And said second party also agrees to furnish to said party on or before January 30, 1887 (or as soon thereafter as the probate proceedings in the estate of Matilda líale, deceased, can be finally settled and the abstract of title continued to show such settlement), an abstract of title showing good title and power and authority to sell and convey in said second party as trustee as aforesaid.
“And the said party of the first part hereby covenants and agrees to pay to the said party of the second part the sum of §21,000, in the manner following, to wit: §500 cash down upon the signing of this agreement, and within ten days after said second party shall have furnished to said first party said abstract of title as above provided, said first party shall pay to said second party the further sum of §3,500, and will make and deliver to him his four promissory notes dated January 1, 1887, payable to the order of said second party at the Merchants’ Loan and Trust Co., Chicago, Illinois; one for §3,000, payable April 1, 1887; one for §5,000, payable one year after date; one for §6,000, payable two years afterdate, and one for §6,000, payable three years after date, all with interest from date at the rate of six per cent, per annum, payable semiannually, and at the same time will make, execute, and deliver to said second party a mortgage on the premises above described, securing said four above-mentioned promissory notes, and at the same time the said second party (the first party having performed his contract) will execute and deliver to said first party the warranty deed aforesaid. In case the abstract of title to be furnished as aforesaid, does not show a good title as herein stated, then the five hundred dollars (§500) this date paid thereon shall be returned to said first party and this contract determined.
“In case of a failure of said first party to make either of the payments or to perform any of the covenants on his part made and entered into hereby, then said contract shall, at the option of said second party, be forfeited and determined, and said second party shall retain all payments made as his agreed and liquidated damages. It is hereby agreed that all the covenants and agreements herein contained shall extend to, and be obligatory upon the heirs, executors, administrators, successors and assigns of the respective j>arties hereto.
“In witness whereof said parties have hereunto set their hands and seals the day and year first above written.
‘ Amos W. Cbavener, [seal.]
“Pbesoott G. Hale, [seal.]
“Trustees under the last will and testament of Matilda Hale, deceased.”

After the making of said contract appellee proceeded to close up the proceedings in the Probate Court, and on or about January 6, 1887, his final account was approved by said court, and appellee was discharged as executor and the estate closed. The abstract of the land mentioned in the contract was extended by the appellee so as to show the final settlement of the estate, and delivered on January 14, 1887, and as soon as it was completed by the abstract makers, to the agent of appellant.

On January 8, 1887, Martin C. Hale, Douglass R Hile and Franklin M. Hale, three of the children and heirs at law of said Matilda Hale, deceased, filed their bill in chancery in the Circuit Court of Cook County against appellee (and other heirs) alleging, among other things, that the said last will of Martha Hale, deceased, was not the last will of said deceased, and praying, among other things, that the same might be set aside.

The abstract which was delivered to appellant by appellee on January 14, 1887, did not show the commencement of said suit in chancery, though it did show that the same parties who filed said bill objected on January 9, 1887, in the Probate Court, to the discharge of appellee as executor, on the ground, as they alleged, that said will] was not the] last \vill of said Matilda Hale.

The abstract furnished to appellant was submitted by him to his solicitor for examination, and on January 20, 1887, said solicitor sent to appellant the following opinion of title:

Dea/r Sir: — I have given the abstract of title to the land —H. i, N.W. I-, Sec. 23, T. 38, 13, in Cook County, Ills. — a careful examination.
“ It is my opinion that the title stood at death of Matilda Hale in her, and that she had good right to convey the same, or to devise the same by will. That under the will, if the same is in all respects valid, Prescott Gr. Hale, as her trustee, has full right to sell and convey the same, and that a deed from said Prescott Gr. Hale and her other heirs (none being under disability) will give a good title in any event. Yours,
“H. T. Helm.”

Heither appellant nor his solicitor knew of the filing of the hill attacking the will till after the date of said opinion. Some negotiations took place between the parties with reference to some arrangement by which the chancery suit might be disposed of and the title passed, but nothing was accomplished; and on March 9th, appellant filed a petition to be made a party defendant in said suit in the Circuit Court, and set out in his petition a copy of said contract for the purchase of the land in controversy, and an order was made by the court making said appellant a co-defendant, with leave to answer.

Appellant did not make the payment of money required by the contract to he made within ten days of the delivery to him of the abstract, and did not make and deliver the promissory notes or mortgage provided for in the contract. About May 7, 1887, appellee was offered §28,500 for the property in controversy, and, through his attorney, answered that he could not sell till he had gotten rid of the contract with appellant, which he proposed todo. On May 27,1887, appellee tendered to appellant a deed of the premises described in the contract, and which was in form according to the contract,'and demanded that appellant should pay the money then due under the contract, and should execute and deliver the notes and mortgage according to the terms of the contract, but appellant refused to accept said deed, and to make the payments or execute the notes. Whereupon appellee tendered to appellant §512.75, being the §500 which appellant paid on the contract with interest thereon from December 21,1886, when it was paid; but appellant refused to receive said tender or to accept said money, and thereupon appellee declared the said contract determined, and demanded from appellant the abstract of sitie. The next day appellant went to the office of appellee’s solicitor and there tendered to appellant the money due upon the contract, and offered to receive the deed and execute the mortgage and notes? provided appellee would procure said chancery suit to be dismissed; but appellee declined, for the reason that he could not get the suit dismissed without the payment of a large amount of money.

On June 4? 1887? the bill in this suit was fifed, showing that appellant refused to discharge said contract? and that by his tiling a copy thereof in said suit in the Circuit Court it had become a cloud on the title of appellee,and that appellant claims a conveyance of said premises? but insists that said chancery suit should be settled, or caused by appellee to be dismissed, and praying that said contract be declared null and void, and be removed as a cloud on appellee’s title, and be ordered delivered up and. canceled. On the hearing? the facts above set out appeared from the pleadings and proofs of the respective parties? and upon said facts the court entered a decree granting the relief prayed for in appellee’s bill.

The correctness of the decree dej)ends upon the question whether, under the terms of the contract and the facts stated? appellee had a legal right to rescind the contract and tender back the deposit paid by appellant. The terms of the contract obligated appellee to convey and assure to- appellant a fee simple title to the premises described? and to discharge such obligation appellee was bound to convey a marketable title, that is, a title not subject to such reasonable doubt as would create a just apprehension; one that would be regarded as merchantable? so that persons of reasonable prudence and intelligence would be willing to take it and pay the fair value of the land. Parker v. Porter, 11 Ill. App. 602; Brown v. Cannon, 5 Gilm. 174; Snyder et al. v. Spaulding, 57 Ill. 480.

It is very plain that the title to the land mentioned in the contract was not in merchantable condition at the time appellee tendered the deed to appellant and demanded the performance of the contract, and appellee not being able to convey such a title as would satisfy the covenants in his agreement? could not put appellant in default by tendering the deed and demanding performance of the contract. Appellant had not agreed to accept such a title as was offered to him, and no prudent man would do so while subject to the uncertainty cast upon it by the filing of the bill. Indeed, it is frankly admitted by counsel for appellee in his brief filed in this court, that appellant could not be compelled to accept any other than a good title, and he states that appellee has never insisted that appellant was bound to accept the title in view of the litigation that was developed after the contract was made. If appellant was not put in default by the tender of the deed, then appellee had no right to rescind the contract on the ground that appellant refused to perform it.

It is contended by appellee that the conditions in the eon-tract authorized him to rescind, if the title was not found good.

The condition is: “In case the abstract of title to be furnished as aforesaid does not show a good title, as herein stated, then the 8500 this date paid thereon shall be returned to said first party, and this contract determined.” How, it is obvious that any party who seeks to determine his contract by availing himself of a condition therein contained providing for such determination, must bring himself strictly within the terms of such condition. The condition is not to be liberally construed, nor enlarged to include facts or circumstances not within its terms, but on the contrary, is, in contracts for the sale of lands, to be taken most strongly against the vendor. In Greaves v. Wilson, 25 Beav. 290, which was a bill for specific performance in a case in which vendor sought to determine a contract under a condition contained in it, the court said: “ The mode in which these conditions must be construed is explained in all the cases upon the subject. They must be construed, like every other instrument, most strictly against the person who frames them, because the vendor alone can be the sole judge of the necessity or propriety of making such conditions before he offers the property for sale. In addition to that, it is to be borne in mind that a person who offers property for sale becomes subject to certain duties, in the character of vendor, and that he does not get rid of them.by special conditions of sale.” It is further said in the same case, that “ A vendor can not make use of a condition to rescind a contract for the purpose of getting rid of the duty which attaches to him upon the rest of the contract, of maleing out a title,” and to this effect is Page v. Adams, 4 Beav. 269. In In re Jackson, 14 L. R. Ch. Div. 851, the rule laid down in Greaves v. Wilson, supra, was followed in a case where the condition provided, among other things, that objection should be made within fourteen days from the delivery of the abstract, and if none were made within the time the title was to be deemed accepted, and if the purchaser should insist on any objection which the vendor should be unable, or on the ground of expense, should decline to remove, then the vendor should be at liberty to rescind the contract by notice, unless the purchaser should, by notice, withdraw the objection, and upon rescission the purchaser should receive back his deposit.

The abstract delivered did not show the real state of the title, and after the title as shown by abstract was approved, it was discovered that there was an equitable mortgage on the leasehold of which the vendor was ignorant. The purchaser insisted that this should be discharged and the vendor gave notice that he was unable and unwilling, on the ground of expense, to comply, and that he would rescind the contract unless the objection was withdrawn. The purchaser refused to admit the rescission and applied to the court, and it was held that there could be no reeission, as the objection did not come within the condition, not having been shown by the abstract, and that the charge upon the property should be cleared off by the vendor.

See, also, Roberts v. Wyatt, 2 Taunt. 268, where a condition in a contract of sale by which the contract was to be void in case the vendor could not deduce a good title, is construed by Lord Mansfield to give an option, not to the vendor, but to the purchaser, to avoid the contract for failure to deduce such good title.

Row, in view of this rule of strict construction as against the vendor, as illustrated by these cases, has appellee brought himself within the condition which he seeks to avail himself of to rescind this contract? He agreed to furnish to appellant an abstract of title showing good title and power and authority to sell and convey in himself, and provided a condition that, in case the abstract of title to be furnished did not show a good title, the deposit should be returned and the contract determined. The abstract which he furnished showed a good title; therefore it is clear that, if nothing further had arisen to affect the title, appellee would have no right to rescind the contract under the condition. Facts existed not shown on the abstract furnished by appellee, which rendered the title not good, but the existence of such facts can' not avail appellee as a basis of rescission, for the condition only authorizes rescission “in case the abstract to be furnished as aforesaid does not show a good title.”

It will not do to suggest that the abstract, if perfect when delivered to appellant, would have failed to show the title good. Appellee took upon himself the duty of furnishing the abstract, and he furnished the one delivered as a compliance with his undertaking, and he can not allege his own error or default in order to bring himself within the condition, and accomplish a rescission. This case is not like the case of Hoyt v. Tuxbury et al., 70 Ill. 332, and Brizzolara et al. v. Mosher et al., 71 Ill. 41, cited and relied on by counsel for appellee. In the first of those cases the provision was that payments were to be made in a certain time after the title had been examined and found good.” In the second case the clause in the agreement was, “ should the title to the property not prove good, then the payment to be refunded.”

So in Mauson v. Fletcher, L. R. 10 Eq. 212, the condition was very broad, being, in effect, if any objection to the title be persisted in, the vendor shall be at liberty to rescind the contract on returning to the purchaser his deposit. The difference between the conditions and provisions of the contracts in those cases and that in the case under consideration is too obvious to require specification. Such cases establish no rule for the construction of this condition.

Our conclusion is that appellee could not rescind the contract under its terms, as he did not bring himself within the condition authorizing a rescission, and he could not rescind for non-performance by the appellant, because appellee was not himself in a condition to perform. ■ As a general thing, a contract can not be determined or rescinded by a party to it unless he is in a position to demand a specific performance. Baker v. Bishop Hill Colony, 45 Ill. 264; Howe v. Hutchinson, 105 Ill. 501; Johnson v. Pollock, 58 Ill. 181.

The decree of the court, annulling the contract and directing its cancellation, can not be sustained, and the same will be reversed and the case remanded, with directions to the Superior Court to dismiss appellee’s bill.

Reversed and remanded.


author: McAllister, J.

text:
    George E. Welling v. Anthony Schiller.

      Sales — Value—Fraudulent Representations — Action on Note — Failure of Consideration — Pleading.
    1. General representations made by a vendor as to the value of property he offers for sale, will not be regarded as evidence of a fraudulent intent except in extreme cases.
    2.. In an action on a promissory note given in paymentfor certain shares of the capital stock of a corporation, it is held: That the court below properly sustained a demurrer to special pleas of failure of consideration by reason of fraudulent representations, the allegations of fraud being insufficient to show failure of consideration.
    [Opinion filed September 18, 1888].
    In errob to the Superior Court of Cook County; the Hon., John P. Altgeld, Judge, presiding.
    This was a suit brought by Schiller as assignee against Welling as maker of a promissory note bearing date March 13, 1886, whereby the latter promised to pay to Albert Schenbeck the sum of $500 ninety days after date, with interest.
    The defendant pleaded the general issue and two special pleas. The first special plea was in substance as follows: Actio non, etc.

      “ That on March 13, 1886, one Albert Schenbeck sold and delivered to defendant fifty shares of stock of the Spitzer Patent Starch Company; that, in consideration thereof and of the representation concerning the same as thereinafter mentioned, the defendant executed two promissory notes, one of which is the note forming said cause of action ; that at the time of said sale and delivery, and before the execution and delivery of said notes to Schenbeck, the latter falsely and fraudulently represented to defendant that said Spitzer’s Patent Starch Company was a corporation and would have a starch factory running in Chicago within thirty days from March 13, 1886; that said company would also extensively manufacture a certain paste and would realize large profits and gains from the sale thereof; that said stock was valuable and would become more valuable; that thereupon the defendant, upon the sole consideration of the transfer of said shares of stock and of said representations, which the defendant believed to bo true and which the said Schenbeck knew to be false and fraudulent at the time they were so made, executed and delivered said note; that said shares of stock, at the time of such sale and representations, were worthless and of no value and have so remained ever since; that said company, within said thirty days, had no starch factory running, and has not had one running since; that said company never manufactured any of said paste, and has never realized any profits or gains from its sale of any starch; that the consideration upon which said note was made, has wholly failed ; .that the said note was assigned to plaintiff after its maturity.” Plea concludes with verification, and prays judgment, etc.
    The second special plea was like the first except that it averred that the assignment of the note to plaintiff was without consideration and not ionafide.

    To the first plea the plaintiff filed a general, to the second a special demurrer, assigning for cause that it was double.
    The court sustained both demurrers, and the defendant electing to abide by his pleas, the cause was tried upon the general issue and plaintiff had judgment, upon which defendant brings error to this court, assigning for error said ruling upon the demurrers.

      Mr. B. M. Shaffnee, for plaintiff in error.
    Messrs. Ellis & Meiselbar, for defendant in error.
   McAllister, J.

The only question involved in this case is the sufficiency of one or both of the special pleas, as pleas of failure of consideration. Unless the matter averred amounted to an express warranty as respected the shares of stock, or a fraudulent misrepresentation of some definite, material fact relating to the sale thereof, neither plea was good.

It is manifest that neither plea sets up an express warranty. The only supposed misrepresentation as to a definite matter of fact, is based upon the averment that Schenbeck, the seller of the shares and payee in the note, represented that the stock was valuable and would become more valuable, whereas in fact it was worthless and he knew it.

The general ride, as to such misrepresentations constituting such fraud as may be the basis of an action for deceit, are collated in 3 Wait’s Actions and Defenses, p. 435, with the authorities in support of them. It is there said: '“General representations made by a vendor as to the value of property he offers for sale, or as to the price he has been offered for it, will not, excepting in extreme cases, be regarded as evidence of a fraudulent intent. One who relies upon such assertions, made by a person whose interest so readily prompts him to invest the property with exaggerated value, docs so at his peril and must take the consequences of his own imprudence. Manning v. Albee, 11 Allen, 520, 522; Curry v. Kayser, 30 Ind. 214; Ellis v. Andrews, 56 N. Y. 83; Dimmock v. Hallett, L. R. 2 Ch. App. 26; Anderson v. Hill, 2 Sm. & M. (Miss). 679.”

To which may be added Noetling v. Wright, 72 Ill. 390; Medbury v. Watson, 6 Met. 259; Davis v. Meeker, 5 Johns. 354; Bump’s Kerr on Fraud, p. 82 et seq.

The pleas, neither of them, set out the transaction of the sale of the shares of stock otherwise than as an executed sale of a specific, ascertained subject-matter. It does not appear that the shares were sold as being of any particular description; that the corporation issuing them had not and never had any capital; nor is it averred that the certificates for the shares were spurious. Torrey v. Buck, 1 Greene Ch. (N. J.) 366; Forbes v. Pausinsky, 14 Ill. App. 1, and books there cited; Mida v. Geissman, 17 Ill. App. 212.

We think the pleas were each of them substantially defective and for that reason affirm the judgment.

Judgment affirmed.


author: Per Curiam.

text:
    Hampton L. Story et al. v. Thomas Carter.

      Sale — Evidence—Order—Subsequent Conversation — Agency—Immaterial Issue — ■Instructions.
    1. In an action to recover for a bill of lumber delivered upon a written order, evidence of a subsequent conversation tending to prove an agreement touching a detail of the transaction as to which the written order was silent, is admissible.
    2. Where a witness testifies that he acted as the agent of the plaintiff in making a sale, the question whether the property sold belonged to him, is immaterial.
    3. It is proper to refuse an instruction on an immaterial issue, or one - that has no basis in the evidence.
    [Opinion filed September 18, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.
    Mr. Robert Van Sands, for appellants.
    Mr. George Sparling, for appellee.
   Per Curiam.

This action was brought to recover for a bill of lumber sold by appellee to appellants. The case was tried by a jury and a verdict and judgment was rendered against appellant for §503.40. On this appeal it is urged that the court committed error in allowing a witness who sold the lumber to testify that, after a written order for the lumber had been given, a conversation was had in which the method of inspection of the lumber was agreed upon. We think there was no error in allowing a subsequent conversation tending to prove an agreement as to a detail of the transaction as to which the written order was silent.

Appellants asked an instruction in substance, that if the jury believed that the lumber belonged to the witness who made the sale and not to the plaintiff in the suit, they should find for the defendants. The said witness testified on the trial that she acted as the agent of plaintiff in making the sale, and there was no evidence on which to base the instruction asked. The matter was not material to appellant, as the witness having testified to plaintiff’s right to maintain this suit, would be estopped from thereafter making a claim against appellants for the price of the lumber.

There was a conflict of evidence as to the quality and value of the lumber, but the verdict of the jury has settled such conflict, and there is no such preponderance of evidence against the verdict as would authorize interference by the court.

There is no error and the judgment will therefore be affirmed.

Judgment affirmed.


author: Garnett, J.

text:
    Joshua C. Sanders v. Henry E. Seelye et al.

      Attorneys — Lien on Papers — Fees—Contract—Construction of.

    1. An attorney is entitled to a lien for a general balance of account on papers which have come into his hands in the course of his professional employment.
    2. In the case presented, it is held: That certain letters and the action of the parties, constituted a contract for services in the Appellate Court only; that the appellees are entitled to a lien on the bonds in question for their fees for services in f.he Supreme Court; and that the evidence is sufficient to sustain the allowance by the court below.

      [Opinion filed September 19, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Mueeay F. Tulby, Judge, presiding.
    In 1874, David A. Gage filed his bill in the Circuit Court of Cook County against the Riverside Improvement Company, Joshua C. Sanders, Henry E. Seelye and others, praying that a release of a trust deed to Henry Greenebaum might be set aside, the trust deed foreclosed and for other relief. Sanders being the holder of 195 bonds secured by a subsequent trust deed to John FT. Jewett, filed a cross-bill in the case to secure the benefits which he thought himself entitled to, as the owner of these bonds. The decree of the Circuit Court was adverse to Sanders, as well as to numerous o.ther parties to the suit. He prayed an appeal to the Supreme Court, and filed there a transcript of the record. The appeal was dismissed. Afterwards, in 1881, Seelye, who was an attorney, was endeavoring to induce certain of the defeated parties to sue out a writ of error from this court. A correspondence on the subject ensued between him and Sanders, the latter then and ever since being a resident of Hew York. Sanders, to forward the plan, consented that the transcript filed in the Supreme Court might be withdrawn for use on the proposed writ of error, but refused all overtures to become one of the plaintiffs in error. September 14, 1882, Seelye wrote to Sanders that the cause was nearly ready for the Appellate Court, and suggested that his position was a good one, and that he should have some one to protect his interests. Two days later Sanders replied, saying lie had received See-lye’s letter about his securing counsel to attend to his interests in the case in the Supreme Court, but in substance declined to de so. Seelye wrote again on the 18th, and Sanders replied on the 21st, in which he said he thought the decision could not be sustained in the Appellate Court. On the 23d, Seelye wrote, making a definite proposition to take charge of the litigation for Sanders on certain terms, and saying if his proposition was agreed to, he should employ Herbert, Quick & Miller, as -the attorneys in the case. Sanders replied September 25th, saying: “In reply I would say, that the terms on which yon propose to have my interests represented and protected in Supreme Court on appeal, are not so favorable as I was led to anticipate, and I can not accede to them. * * * I will pay for the printing necessary in the case, and I will pay attorney’s fees in addition to make the sum §500 if he is successful; if not successful $300. That is, the total shall not exceed $500 in case of success, and only $300 if not' successful. The bill for printing, not to exceed $150, I will pay as soon as rendered. My proposal relates to a reversal in the Supreme Court. As to the other acts succeeding, differents terms can be fixed.”
    This letter was never shown to Herbert, Quick & Miller, nor its contents made known to them. Seelye wrote Sanders on the same day, that he had taken the liberty of employing Herbert to prepare an argument for him, and would himself compensate him, until he heard from Sanders. When Seelye received Sanders’ letter of September 25th, he had an interview with Herbert, Quick & Miller, and that firm wrote Seelye a‘letter, dated September 28th, saying: “We have considered vour proposal in behalf of Mr. Sanders, that we represent his interests in the Appellate Court.” They then proceed to explain at some length the situation of the case, and decline Sanders’ offer. On the same day Seelye wrote to Sanders inclosing the letter from Herbert, Quick & Miller, and saying to him, “I submitted your proposition to Messrs. Herbert, Quick & Miller, and have just received the inclosed. After reading please return to me, etc.” September 30tli, Sanders writes Seelye that he is not much encouraged to engage in this free fight — that it looked too much like taking a leap into the dark, and closed by saying, “I can not change my proposal, and if not accepted, I will wait and look on, abiding events.” Before there was any further correspondence, Herbert entered Sanders’ appearance in the case in the Appellate Court, of which Sanders was informed by Seelye. Various letters passed between Seelye and Sanders from October 17, 1882, until June 27, 1883, in all of which the case was referred to as pending in the Appellate Court, and Sanders was informed of successive moves in that court and that on account of Herbert’s death, Miller had taken charge of the case. During that period a misunderstanding arose between them as to Sanders’ liability for costs and he referred to and insisted upon standing by his letter of September 25, 1882. Seelye’sreply stated: “Referring to yours of September 25th, I note the error in my recollection of your agreement,” etc. On June 27, 1883, the Appellate Court affirmed the decree of the Circuit Court, and the same day Seelye notified Sanders of the fact, and asked him what they should do; that the parties in Chicago wanted to take it up, but that it rested largely with him to decide, and the expíense would not be large. June 30, 1883, Sanders replied: “If the expense is not going to be great, I should be in favor of going up to the Supreme Court. I would like to have some idea of what the expense will be. I do not wish to take another leap in the dark. * * * I am ivilling to sustain my fair proportion,” etc. July 21st, Seelye sent Sanders an appeal bond for his signature and stated in his letter: “The costs of an appeal will not exceed §500, and may fall quite below that,” etc. The appeal was taken to the Supreme Court. Sanders was informed of it and wrote several letters to Seelye inquiring about the decision of that court. Seelye and Quick & Miller had charge of the case in the Supreme Court, and Sanders was informed thereof. January 29, 1885, the Supreme Court reversed the order of the Appellate Court affirming the decree, and the result was largely favorable to Sanders. Before hearing of the decision of the Supreme Court, Sanders asked Seelye if he had his 195 bonds in a secure place, and learning that he had not received them, on February 5th, sent Seelye an order for the bonds, directing him to put them in a safe place and hold them subject to his order. Seelye took the bonds and put them in the vault of Quick & Miller, where they now remain. A dispute having arisen between Seelye, Quick & Miller and Sanders, about the amount of compensation the attorneys were entitled to, Sanders demanded his bonds, but the appellees insisted upon retaining them under an attorney’s lien until their fees in this litigation as well as their general balance of account against Sanders is paid. A rule to show cause why the bonds should not be surrendered to Sanders, was issued on his motion by the Circuit Court, but on the hearing of the matter, that court decreed that Sanders was indebted to Seelye in the sum of $1,158.25, and to Quick & Miller in the sum of $4,950, and that they respectively have retaining liens on the bonds for the payment of their claims. Sanders excepted to the decree and appealed.
    Mr. D. T. Corbin, for appellant.
    Messrs. D. J. Schuyler and Henry E. Seelye, for appellees.
   Garnett, J.

The chief point, in dispute in this case is whether the letters referred to in the statement of the case, and the action of the parties, constitute a contract for all the services rendered by appellees for appellant until the decision of the Supreme Court, for the sum of $500 if successful, and $300 if not successful, or was for services in the Appellate Court only. The Circuit Court held the latter was the true interpretation. Sanders, in his letter of September 25, 1882, taken alone, seems to be emphatic in his determination not to pay more than $500 for a reversal of the decree in the Supreme Court. It must be admitted, however, that he did not always mean the Supreme Court when he used those words. In his letter of September 16, 1882, he acknowledged receipt of Seelye’s letter of the 14th, referring, as he (Sanders) says, to securing counsel to attpnd to his interests in the Supreme Court, although Seelye’s letter of the 14th distinctly named the Appellate Court and made no reference to the Supreme Court. Thus there was a foundation laid for the supposition that when he said “ Supreme Court” in his letter of September 25th he meant the Appellate Court. That Seelye acted on that supposition, in good faith, is shown by the fact that immediately after its receipt he called on Herbert, Quick & Miller, and proposed to have them represent Sanders in the Appellate Court. On the same day (September 28th) they wrote Seelye that they had considered his proposal in behalf of Mr. Sanders that they should represent his interests in the Appellate Court, and declined the same. That letter was sent by Seelye to Sanders, and in his letter inclosed therewith, Seelye said: “ I submitted your proposition to Messrs. Herbert, Quick & Miller, and have just received the inclosed.” There was distinct and definite information given to Sanders that Seelye understood him to mean the Ap-pellate Court, in his letter of September 25th. If Sanders did not mean that he should have so stated by correcting Seelye. When he afterward learned that Herbert was at work on his case in the Appellate Court, he must have known that he had reconsidered the matter and determined to accept the proposal which his letter showed he understood to have been made by Sanders. If Sanders did not wish his services as he was informed Herbert understood he was rendering them, he should have spoken. Having remained silent, it is now too late to speak. This view of the question is confirmed by the correspondence between Seelye and Sanders in June, 1883, after the decree was affirmed by this court. Hp to that time Sanders, in his letters to Seelye, had insisted on the binding force of his letter of September 25th. When additional expense, not within the terms of that letter, was proposed to him, for the purpose of an apjmal to the Supreme Court, he no longer refers to that letter as the measure of his undertaking, but inquires about the amount that will be required, and says he is willing to sustain his fair proportion. It may be fairly said that this was a tacit admission that the contract between the parties had reached its termination.

We are not satisfied from the record that anything was allowed to Seelye for his services in the Appellate Court. The decree allowed $1,200 on account of items six and ten in the bill presented by him. Item six was a charge of $1,750 for services in the matter of agreement with W. L. Peck et al., and item ten was a charge of §1,000 for services and disbursements in Appellate, Supreme and Circuit Courts. The decree of the Circuit Court made a large redaction from the amounts allowed by the master on those two items; the evidence being sufficient to sustain the amount allowed'by the court, and there being nothing to show that any part of the amount was allowed for services in the Appellate Court, we can not say the decree is erroneous on account of this allowance. The bonds came into the hands of the attorneys in the course of their professional employment, and they are therefore entitled to a lien on them for the general balance of their accounts. Weeks on Attorneys at Law, See. 871; 1 Jones on Liens, Secs. 115, 119.

A number of other questions have been forcibly argued by .counsel for appellant and by counsel for appellees on their cross-errors, but as a separate and formal presentation of them in this opinion would not be serviceable either to the parties or the profession, we must content ourselves by saying that they have all had careful consideration, and we find the decree of the court below is not unwarranted in any point. It is therefore affirmed.

Decree affirmed.


author: Gatcnett, J.

text:
    Towner K. Webster, Receiver, v. Noble B. Judah, Assignee.

      Insolvency — Jurisdiction—Rights of Resident Creditors of Foreign Insolvent — Order to Pay Dividends, not Final — Garnishment—Jurisdiction.

    1. It is the policy of the taw to secure to resident creditors of a foreign insolvent priority over foreign creditors as to assets here situated.
    2. An order of the County Court directing the assignee of an insolvent’s estate to pay to the receiver of a foreign insolvent’s estate all dividends th reat'ter declared on a claim held by the latter, is not a final order. It may he set aside on good cause shown at any time before the payment of the final dividend.
    3. In the case presented the County Court should have granted the petition of the appellant for leave to garnishee the assignee of a resident insolvent, on a claim against the estate of the foreign insolvent.
    4. The County Court is not a court of equity for the disposition of all incidental disputes between cred’tors of insolvents and third parties growing out of antagonistic claims to dividends payable from the insolvent estate.

      [Opinion filed September 19, 1888.]
    Appeal from the County Court of Cook County; the lion. Pichard Peeítdeegast, Judge, presiding.
    The appellant, a citizen of Illinois, was appointed receiver of the partnership) estate of Mershon & Bancroft, also citizens of Illinois, by the Superior Court of Cook County, December 17, 1887. Among the assets coming into the hands of the receiver was a valid claim for abont $2,500 against the Mew Haven Wire Company, a corporation organized under the laws of Connecticut. That company became insolvent, and S. A. Galpin was appointed receiver thereof by the Probate Court of Mew Haven County, in the State of Connecticut, on the 6th day of September, 1887. Among the assets of the com]¡any was a claim for a large amount against the firm of Sherman & Marsh. The latter firm became insolvent prior to September 6, 1887, and appellee was appointed its voluntary assignee for the benefit of creditors, and the estate of the firm being in process of settlement in the County Court of Cook County, said company duly proved therein its claim against the estate of said Sliennan & Marsh. September 2d, 1887, the receiver of said company presented to the County Court a certified copy of the order of court appointing him, and an order was then entered by the County Court substituting Galpin, receiver, as claimant in place of said company, and directing said assignee to pay to said Galpin, as receiver, any and all dividends that might be declared on said claim. Two dividends were ordered by the County Court, and paid by appellee to Galpin. Thereupon appellant filed his petition in the County Court, praying for an order directing appellee to pay appellant to the extent of his claim, out of any dividends which might thereafter become due and payable on said company’s claim. On February 10, 1888, a third dividend was declared, but was not paid to Galpin on account of an order of the County Court, entered on the said petition 'of appellant, directing appellee to hold the same until the further order of the court. Appellant then commenced suit against said company on said claim, with attachment in aid, in the Superior Court of Cook County, and thereafter filed this supplemental petition in the County Court, praying for leave of that court to garnishee appellee in the attachment. The New Haven Wire Company has no other assets than its said claim against the estate of Sherman & Marsh.
    The facts herein stated are admitted by both parties. The County Court denied the prayers of the petitions and dismissed the same expressly and solely because of its order of September 24, 1887, and the payment of the first two dividends to Gal pin, receiver, and that by reason thereof, said Gal pin would be able to successfully maintain his title to the third dividend in case he was garnisheed as proposed by appellant.
    Messrs. Moses & Newman and Millabd R. Po-webs, for appellant.
    Appellant is a resident creditor and the Illinois courts protect resident creditors. This is the theory of our attachment laws. Hyer v. Alexander, 108 Ill. 395, cited in Lipman v. Link, 20 Ill. App. 364.
    The doctrine is well settled that “ the powers of a receiver are eo-extensive only with the jurisdiction of the court making the appointment, and particularly that a foreign receiver should not be permitted, as against the claims of creditors resident ira another State, to remove from such State the assets of the debtor, it being the policy of every government to retain in its own hands the property of a debtor until all domestic claims against him have been satisfied.” C., M. & St. P. Ry. Co. v. Packet Co., 108 Ill. 322; High on Receivers, See. 47.
    We contend that if the dividend has actually been paid over to the Connecticut receiver, he being in this State with the fund, would, as against a domestic creditor, be subject to our garnishment laws. But the case at bar is much stronger, and we pray for the reversal of the order of the County Court and for an order that said court proceed to grant petitioner leave to implead the appellee.
    Mr. Joseph Weight, for appellee.

      No case has been cited by appellant which holds that a foreign receiver, taking title not only by his appointment, but also by absolute deed of conveyance, can be forced to hand over property to a resident attaching creditor, after he has once taken possession of it for the benefit of all the creditors. In the very case cited by appellant, the C., M. & St. P. Rd. Co. v. Packet Co., 108 Ill. 325, the Supreme Court recognize the right of the foreign receiver, who has once taken possession of property, to hold it as against resident creditors.
    Nearly all the cases found on this point are cases where resident creditors have attached property before the assignee or receiver had taken, or in any way attempted to take possession of the property, and where the assignee or receiver came into the proceeding by way of interpleader and claimed the property. In the case before this court the position of appellant is different from that of the attaching creditors. Here Mershon & Bancroft and the appellant had obtained no fixed legal rights to the fund or claim prior to the possession thereof taken by Gal pin.
    Upon this point the attention of the court is called to the case, Patterson v. Lynde, 112 Ill. p. 207, at the end of which the court used the following language: “ The doctrine is recognized by this court that a receiver should not be permitted, as against the claims of creditors resident in another State, to remove from such State the assets of the debtor, but, where resident creditors have no fixed legal claim to the property, he may be allowed, as a matter of comity, to remove the same.”
   Gatcnett, J.

This record shows conclusively, as between appellant and appellee, that appellant’s claim against the New Haven Wire Company is just and lawful, and the only hope of collecting it is by garnisheeing the appellee. Unless there is some inexorable rule of law or practice to the contrary, the County Court should have granted the prayer of the amended petition. That court could not entertain the controversy and mete out justice to the rival claimants. It is not a court of equity for the disposition of all incidental disputes between creditors of insolvents and third parties, growing out of antagonistic claims to dividends payable out of the insolvent estate. The amount involved exceeds the jurisdictional limit of the County Court. Either party was entitled to a jury trial, and that court had no jurisdiction at law of the case. Appellant is remediless, unless he is permitted to proceed with his suit at law and garnishee appellee. Appellant is a resident creditor of the Hew Haven Wire Company, representing the estate of resident creditors of that company, and the policy of our law secures to creditors resident in this State, if they avail themselves of it by proper legal steps, a priority as against foreign creditors on the assets here situated and belonging, or debts here owing to the estate of a foreign insolvent. Heyer et al. v. Alexander et al., 108 Ill. 385.

Domestic creditors may, by suitable proceedings, prevent the-removal from this State of assets of that character until their own claims are satisfied. Galpin, the receiver appointed by the Connecticut court, now proposes to collect the money due the foreign insolvent and adm'nider it under the laws of that State, thus compelling the domestic creditor to seek relief in a foreign jurisdiction, where, for aught we know, the entire fund may be absorbed by creditors on whose motion Galpin was appointed, to the exclusion of appellant.

The ground upon which the court based its denial Of appellant’s prayer, is not sound. The order of September 24,1887, was not a final order, but might have been set aside, on good cause shown, at anv time before the payment of the final dividend. Moreover, appellant was not a party to the proceeding at that time, and he can not be prejudiced thereby. Galpin is not a bona fide purchaser, whose claim must be respected in an attachment suit. One having a prior equity, as we have seen is the case with appellant, has a superior right, of which he can not be deprived by a transfer to one paying no consideration. Born v. Staaden, 24 Ill. 320.

The County Court should have granted appellant leave to proceed against the appellee by way of garnishment, otherwise there is a manifest failure of justice.

We express no opinion as to whether appellant shall sue in his own name or in that of Mershon & Bancroft. He should be permitted to proceed in that respect as he may be advised.

The order of the County Court is reversed and remanded.

Reversed and remanded.


text:
    Jacob Sankey et al. v. William C. Seipp et al.

      Tax Sales — Precept—Sec. 194, Chap. 120, B. S. — Equity—Jurisdiction — Practice.
    1. A sale of lands for taxes is invalid unless the county clerk has made the certificate to be entered of record as required by Sec. 194, Chap. 120, E. S. To make the sale valid there must be a valid precept.
    2. Where a tax certificate has been issued on an illegal sale of land for faxes, a court of equity has jurisdiction of a bill to remove the cloud on the title.
    3. An offer in the bill to pay whatever moneys, taxes and interest equity may require, is a sufficient offer to do equity.
    4. Upon the remanding of the cause the court below may deal with deeds issued on the certificates in question pending this proceeding. Such deeds are of no higher validity than the certificates.
    [Opinion filed September 19, 1888.]
    In error to the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. F. W. S. Brawley, for plaintiffs in error.
    Messrs. H. S. Meoartney and Augustos H. Gage, for defendants in error.
   Moran, P. J.

Plaintiffs in error filed their bill in the Superior Court against the defendant in error, seeking to have certain certificates of sale for taxes held by some of the defendants canceled as clouds on complainant’s title, and the said sale for taxes, in pursuance of which said certificates were issued, annulled. A large number of lots are described in the bill, and the persons to whom sold, named, and the amounts for which said lots sold respectively stated.

It is alleged that at the time of filing the bill and for several years prior thereto complainants were the owners in fee simple of said lots, and that all of them were unimproved and unoccupied except two, which were in the possession of complainants by tenant; that the count}' collector, attended by the county clerk, sold said lots in October, 1884, for some pretended tax or assessment, and the county clerk issued to the said purchasers the usual certificates of purchase. As ground for canceling said certificates the bill alleges that the county clerk of Cook County did not, at any time before said pretended sales, make any certificates to be entered on the record as required by the statute in such case made and provided, which should be the process on which all real property or any interest therein, should be sold for taxes, special assessments, interests and costs due thereon; therefore, said sales were illegal and the certificates issued thereon clouds on complainant’s title, and should be canceled. The prayer is that said several sales may be annulled and the said certificates set aside and declared void as against complainant as a cloud upon his title to said lots, and that the county clerk of Cook County may be enjoined from issuing any deed or deeds upon said sales or either of them, complainant to pay whatever moneys, taxes and interest equity and the court might require of him in that regard. A general demurrer was filed to the bill and on argument the demurrer was sustained and the bill dismissed for want of equity. This was error.

The statute relating to the sale of lands for taxes, provides as follows: Sec. 194, Chap. 120 E. S. “On the day advertised for sale, the county clerk, assisted by the collector, shall carefully examine said list upon which judgment has been rendered, and see that all payments have been properly noted thereon, and said clerk shall make a certificate to be entered on said record, following the order of court, that such record is correct, and that judgment was rendered on the property therein mentioned for the taxes, interest and costs due thereon, which certificate shall be attested by the clerk under seal of the court, and shall be the process on which all real property, or any interest therein, shall be sold for taxes, special assessments, interest and costs due thereon,” and the form of such certificate is specified.

It is sufficiently alleged in the bill that the clerk did not, at any time before the sale, make any certificate to be entered of record as required by the terms of the foregoing section of the statute and such allegation in the bill is admitted by the demurrer to be true. The failure of the clerk to make such certificate, rendered the sale invalid; for, while the tax judgment may have been valid, there was no valid precept to the officer assigned by law to make the sale. To make a valid sale, a valid precept is as essential as a valid judgment; either lacking, the sale is void. Eagan v. Connelly, 107 Ill. 458.

The certificates of sale issued to defendants in error in pursuance of such sale, were therefore invalid and a cloud upo2i complainant’s title, and it has been repeatedly decided by the Supreme Court of this State that where a tax certificate has been issued upon an illegal sale of land for taxes, a court of equity will take jxxrisdiction to annul the sale and caxicel the tax certificate and thus remove the cloud upon the title to the land. Gage v. Rohrback, 56 Ill. 262; Gage v. Chapman, 56 Ill. 311; Phelps v. Harding, 87 Ill. 442.

Goxnplainants, in their bill, offer to pay whatever moneys, taxes and interest equity may require. This was a sufficient offer to do equity, and under such offer the proper course was for the court to requii’e complainants to refund to the defendants in error the amount paid by them, with interest on the sum or sums paid at the rate of six per cent, from the date of judgment, and on that being done to cancel the certificates. Gage v. Pistle, 20 Legal News 298; Gage v. Nichols, 112 Ill. 269.

It will be noted that the demurrer filed to the bill in this case was not a demurrer for multifariousness, but a general demurrer to the bill for want of equity.

There can be no doubt of the equity of the bill. The defendants in error have filed a plea in this com! in bar of the writ, in which they aver that since the dismissal of the bill in the court below, and before the suing out of this writ of error, deedshavebeen issued to them on said certificates by the county clerk.

To this plea, plaintiffs in error have demurred. There is nothing alleged in the plea to bar the writ. The deeds are of no more validity than the certificates, and they can be dealt with upon proper suggestions on the return of the case to the Superior Court. The decree dismissing the bill will be reversed and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and rema/nded.


text:
    World’s Soap Manufacturing Company v. Jasper R. Woltz.

      Practice — Appeal from Justice — Affidavit of Merits — When to he Filed.

    Where an action, commenced before a justice with an affidavit of claim, is appealed to the Circuit Court, the defendant is not required to file an affidavit of merits until the cause is reached for trial.
    [Opinion filed September 19, 1888.]
    In error to the Circuit Court of Cook County; the Hon. -Richard S. Tuthill, Judge, presiding.
    Messrs. Walker, Furthman & Judd, for plaintiff in error.
    Messrs. Tolman & Davies, for defendant in error.
   Moran, P. J.

This action was commenced before a justice of the peace, and from the judgment rendered by the justice against plaintiff in error an appeal was taken to the Circuit Court. An affidavit of claim was filed by defendant in error in the justice court, in accordance with the provisions of Sec. 34, Chap. 79, B. S., and said affidavit of claim was sent up to the Circuit Court, with the transcript and other papers in the case.

At a term of the Circuit Court, after the court had obtained jurisdiction of the parties by appearance and of the subject-matter, but before the case was readied for-trial, a judgment was taken against plaintiff in error by default, for want of an affidavit of merits, on the theory that the affidavit of claim tiled before the justice authorized such judgment. The practice adopted is claimed to be warranted by the last clause of the section of the statute above cited, which provides, “ that jn case of an appeal from the judgment of the justice of the peace, as aforesaid, such affidavit shall have the same force and effect in the appellate court as if such suit had been commenced in such appellate court.”

We considered and construed such provision of the statute in the case of Martin v. Hochstadter, decided at the present term of this court (ante, p. 166], and there held the practice here complained of was not warranted by law.

The views of this court are fully set forth in the opinion of Mr. Justice Garnett, and need not be here repeated. The entry of the judgment as by default was erroneous, and the judgment will be reversed, and the case remanded to the Circuit Court.

Reversed and remanded.


text:
    Siemens-Lungren Gas Illuminating Company v. Louis G. Francis.

      Sales — Order for Goods to be Manufactured — Rescission—Action to Recover Price — Trial by Court — Practice.
    In an action to recover the price of certain regulators for gas lamps, manufactured and delivered after the order for them was countermanded, the trial below having been by the court, it is he7d: That, if the contention of the defendant that a continuation of the test upon which the order and warrant were based resulted in failure, is well founded, the defendant was justified in rescinding the order; and that, in the absence of a finding of facts contrary to such contention and in favor of plaintiff, the court erred in refusing to hold a proposition of law based upon the hypothesis of the defendant.

      [Opinion filed September 19, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    This is an appeal from a judgment rendered against appellant and in favor of appellee, for certain regulators alleged to have been manufactured by appellee «for appellant. The evidence shows that appellee brought to appellant’s place of business a regulator, and that a test was made of such regulator upon a gas lamp by appellee and one Wolf who was president of the appellant company.
    The test lasted till about eleven o’clock at night, and the regulator appeared to work satisfactorily. Before leaving his office on the evening of the test the president of the company gave the following order to appellee:
    February 29, 1886.
    L. G. Francis, Esq.

      Dear Si/r: “ Please make me one hundred of your im-
    proved pipe regulators for our gas lamps, and deliver to us as soon as possible. If you find you can afford them at $3.56 each after making this one hundred, well and good. If not, I will pay you $3.75 each for the first one hundred cash, as soon as done and ready to deliver.
    “ The Siemens-Lungren Gas Illuminating Co.
    “ Joseph Wole, Pres’t.”
    Concurrently with the delivery of the foregoing order, and as a part of the transaction, appellee executed and delivered the following:
    Chicago, February 26, 1886.
    “ Tiffs is to certify that in selling Messrs. Siemens-Lungren Gas Illuminating Company my pipe gas regulators I warrant them all well made in every particular, and to work in every -way as perfect as the one the trial test was made with when the order for one hundred machines was given. It will ho’d a uniform pressure to the burner at all times. In all the regulators sold by the hundreds, I have never had one fail to work in satisfactory manner, and I warrant these to work the same. “L. G. Francis.”

      Appellant introduced evidence tending to show that after the order was given the test of the regulator was continued all night, by an employe of appellant, and by appellee, and when Wolf came down in the morning he found that the regulator had failed, and would not do tlie work, and he thereupon sent for appellee and told him, in substance, that the regulator would not work, and that they would not bother with it, and that he wanted the order back, as they would have nothing more to do with the governor. Appellee introduced evidence tending to show that the order was not -given on the occasion when the regulator failed, but was given on the occasion of a subsequent test, after he had improved the regulator, and when it worked perfectly.
    Appellee made a hundred regulators and delivered them at appellant’s place of business and brought this suit to recover the price thereof. The case was submitted to the court and the finding was in favor of appellee. On the trial the appellant submitted to the judge to be held, among others, the two following propositions of law, which the court refused :
    “ Proposition No. 3. That if it appears from the evidence that the trial test mentioned in the contract of warranty was made on the evening of February 26, 1886, at eleven o’clock p. m. of said day, the test made was satisfactory, and upon such satisfactory test the order for one hundred governors was given, and it shall further appear that the lamp with governor continued burning all night and in -the morning it was found that the lamp and room were filled with smoke because of the defective action of the governor, that then, if the defendant had reason to believe and did believe the said governors would not do satisfactory work, it had the right to rescind the contract and to notify the plaintiff of such rescission.
    ;c Proposition No. 4. That, if it shall appear that the state of facts as contemplated in instruction No. 3 existed and that on the morning of the 27th of February, 1886, the defendant did notify the plaintiff that the governors in question were valueless, or would not do satisfactory work, and the plaintiff in spite of such notification persisted in manufacturing said governors and tendering the same to the defendant, that then the defendant had the right to reject the same.”
    Messrs. Payne & Porter, for appellant.
    The order was rescinded by appellant the day after it was given, and before anything had been done by appellee toward manufacturing the goods.
    We contend that the rights of the parties were fixed and determined at the time of that rescission, and that nothing done subsequently by either party could affect those rights.
    In other words, Francis has the right to hold appellant liable for damages sustained up to the time of the rescission, in an action for breach of the contract, but he liad not the right to go ahead and manufacture the regulators, and then recover the price fixed by the rescinded contract, as was done in this case. Hosmer v. Wilson, 7 Mich. 294; Collins v. Delaport, 115 Mass. 159.
    It was the duty of "the appellee, after the rescission of the contract by appellant, to save the latter from all further damages, so far as it was in his power. Dillon v. Anderson, 43 N. Y. 231; Danforth v. Walker, 40 Vt. 237.
    Messrs. Wilber, Eldridge & Clark, and John W. Smith, for appellee.
   Moran, P. J.

Upon the hypothesis contained in the two propositions set out in the statement of facts, it is very clear that appellant would have the right to reject the regulators. Hosmer v. Wilson, 7 Mich. 294; Danforth v. Walker, 37 Vt. 239.

There was a conflict of evidence as to the facts on which the hypothesis contained in the propositions was based, and if the judge was convinced that the appellee was right on this issue of facts, he could have so found and modified the propositions, or have held the law of the propositions and denied the assumed facts. The effect of refusing the propositions is to find the facts as stated in them, but to deny the conclusion of law announced.

The court erred in refusing the 4th proposition, as connected by reference to the 3d, and while, if the judgment rested on a finding of facts in favor of appellee, we might not be disposed to interfere, for the error in law in refusing to hold said proposition, we must reverse the judgment and remand the case.

Me,versed and remanded.


text:
    Edward Payette et al. v. Free Home Building, Loan and Homestead Association.

      Trust Deed — Foreclosure—Building Association — Defective Organization — Estoppel—Attorney's Fees»
    1. Where there has been an attempt made in good faith to organize a loan and building association under the laws of this State, and the association has done business as a corporation, one who has borrowed money from, it as a corporation defacto, can not setup its defective organization by way of defense to a bill for the foreclosure of a trust deed given to secure the p íyment of the money borrowed.
    2. A provision in a trust deed authorizing the payment of attorney’s fees in case of a foreclosure by the trustee, does not sustain a decree including attorney’s fees upon a bill filed by the cestui que trust,
    [Opinion filed September 19, 1888.]
    In error to the Circuit Court of Cook County; the Hon. Murray F. Tulby, Judge, presiding.
    Messrs. Henry Hudson and Young & Marret,, for plaintiffs in error.
    Mr. Oliver H. Goldsmith, for defendants in error.
   Moran, P. J.

The decree appealed from in this case was entered on a bill filed by defendant in error against plaintiff in error to foreclose a certain trust deed which was executed by-Edward Payette and wife to Patrick "W". Holway as trustee, to secure the payment of an indebtedness of $1,300 from said Payette to the said defendant in error.

The loan was made under the terms usual with said Loan and Building Association, and was payable in monthly installments, and the borrower became, under the rules of the association, a stockholder therein. It is sought to defend against the right of defendant in error to a decree of foreclosure, on the ground that the association did not comply-with the provision of the law regarding the organization of such associations, and that therefore it never became a corporation under the law, and can not transact business or have a standing in court as such.

It appears that there was an attempt to organize the association made in good faith under a law of this State authorizing the organization of such associations, and that the association has done business as a corporation, and that plaintiff in error contracted with the association as a corporation de facto, and received the money which, by his contract with the association, he agreed to repay, from the said association. Under such circumstances he will not be allowed to suggest a defect in the organization in order to prevent the recovery of the money loaned to him. While under the rules of the association he became a stockholder, yet the suit is not brought to recover for his shares of stock, but to recover for money advanced to him. Hence he does not come under the exception to the general rule which allows a stockholder, when sued for Ips stock subscription, to question the legal existence of a corporation. Hudson v. Green Hill Seminary, 113 Ill. 618.

The association was entitled to a decree of foreclosure for the money loaned and the interest thereon according to the terms of the agreement executed by Payette, but not to a decree including attorney’s fees; and the decree having allowed attorney’s fees against plaintiffs in error, must therefore be reversed.

The trust deel which is being foreclosed authorized the payment of attorney’s fees in case a bill was filed by the trustee, in his own name or otherwise, to obtain a decree for the sale of the premises conveyed in the trust deed. This bill is not filed by the trustee, but by the cestuñ que trust j hence the agreement to pay attorney’s fees does not apply in favor of the complainant. Stipulations in trust deeds or mortgages to pay attorney’s fees are always strictly construed, and are never enforced except under the terms of the agreement they are clearly provided for.

See the opinion of this court by Mr. Justice Bailey, Cheltenham Beach Improvement Company v. Whitehead, 26 Ill. App. 609, where this question is fully considered, on a stipulation similar to the one contained in this trust deed.

For the allowance of the §130 attorney’s fee the decree will he reversed and the cause remanded, with directions to the Circuit Court to enter a decree conforming to this opinion.

JReversed and remanded..


author: Morar, P. J.

text:
    Mary E. Campbell v. Andrew Campbell.

      Divorce — Cruelty—Bill—Allegations—Sufficiency of.

    It is sufficient in a bill for divorce for extreme and repeated cruelty, to make such allegations as will admit the proof of cruelty and of at least two distinct acts of personal violence. Such distinct acts may be alleged as occurring on the same day.
    [Opinion filed September 19, 1888.]
    In error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. Levi Sprague, for plaintiff in error.
    Mr. E. W. Adkirsor, for defendant in error.
   Morar, P. J.

. Plaintiff filed her bill for divorce and after allegations sufficiently stating her marriage with defendant and her residence in the State alleged her cause for divorce as follows:

“And your oratrix charges that very soon after their said marriage as aforesaid, the said defendant commenced a course of extreme and repeated cruelty toward your oratrix; that he has often threatened and abused your oratrix in a most cruel and shameful manner. That on, to wit, the 9th day of May A. D. 1886, at the city of Chicago aforesaid, the said defendant caught hold of your oratrix by her throat and threw her down upon the floor, and choked, beat, bruised and otherwise maltreated your oratrix in a most cruel, angry, rude and revengeful manner. And again, on the same day last aforesaid, at the place aforesaid, the said defendant again choked, beat, bruised and otherwise maltreated your oratrix, and threatened to take the life of your oratrix, and by means of force took from your oratrix a certain gold watch, of the personal goods and chattels of your oratrix.
“ So your oratrix charges that the said defendant, Andrew Campbell, has been and is guilty of extreme and repeated cruelty toward your oratrix.”

Defendant demurred to the bill on the ground that no ease was made in the bill which entitled complainant to the relief sought, and the Circuit Court sustained the demurrer and dismissed the bill, and complainant brings the ease to this court by appeal, and the question presented is whether the portion of the bill above set out sufficiently states a case of extreme and repeated cruelty entitling complainant to a divorce under the statute of this State.

It is sufficient in stating the cause for divorce for extreme and repeated cruelty, to make such allegations as will admit the proof of cruelty, and of at least two distinct acts of personal violence.

The bill alleges that soon after the marriage he commenced a course of extreme cruelty toward her, and that he has often threatened and abused her in a most cruel and shameful manner. That allegation would certainly admit the proof of various and different facts by which general and repeated cruelty would be established. Then as to the acts of physical violence the time and place is given, and the act so described as to clearly make it an act of extremely cruel violence to the person of complainant, and then it is alleged that on the same day, and at the same place the defendant again choked, beat, and bruised her, and threatened to take her life, and by force took from her a certain gold watch, her personal property.

There are sufficiently alleged, two distinct acts of physical violence. That they are both alleged on the same day, and at the same place, does not weaken the allegation. Two distinct acts of violence to the person of the wife by the husband, occurring on the same day, furnish as strong technical cause for divorce, as two such acts occurring in the same week or month, and may in fact constitute a more meritorious cause. The effect of tlie demurrer is to admit that plaintiff in error was beaten, choked and bruised twice on the same day by her husband, and that she was often threatened and abused by him prior thereto in a most cruel and shameful manner.

We are of opinion that such allegations are sufficient to enable plaintiff in error to introduce her proof, and that it was error to sustain the demurrer to the bill.

The decree dismissing the bill will be reversed, and the case remanded to the Circuit Court.

Reversed and remanded.


text:
    Sarah A. Curtis v. Ida G. Williams.

      Jurisdiction — Appeal from Interlocutory Order — Stay of Proceedings —Act of June 14, 1887.
    1. This court has no jurisdiction of an appeal from an order staying proceedings on an original bill, until the issues should be made upon a cross-bill, and until the further order of the court.
    2. Such an order is not an injunction within the meaning of the Act of June 14,1887.

      [Opinion filed September 18, 1888.]
    Appeal from the Superior Court of Coolc County; the Hon. Henry M. Shepard, Judge, presiding,
    Messrs. Kraus, Mayer & Stein, for appellant.
    Messrs. Case, Judson, Hogan & Bradley and Ela & Grover, for appellee.
   Garnett, J.

An original hill to foreeTose a trust deed was filed by appellant against appellees January 20, 1888, in the Superior Court of Cook County, and the issues being made up, was referred to the master, who, having taken proofs, was about ready to make his report, when the stay order hereinafter referred to was entered. On April 5-, 1888, Ida G. Williams filed her eross-bill in the cause, and on May 16th, her amended eross-bill, against Sarah A. Curtis and the other defendants, making also a new party defendant, Margaret A. Humble, and praying therein, among other things, that said Curtis and Humble might interplead, and that their several claims to the notes secured by the trust deed might be adjusted and settled. On application of complainant in the cross-bill, the court, by its order entered June 6,1888, stayed all proceedings on the original hill until all the issues should be made up on the eross-bill, and until the further order of the court. The reversal of that order is the object of the appeal. We are dearly of the opinion there, is no statute in force which sanctions an appeal from such an order. It is not an injunction within the meaning of the act entitled “An act to provide for appeals from interlocutory orders granting injunctions or appointing receivers,approved June 14, 1887, in force July 1, 1887. We have no disposition to enlarge the extraordinary privileges granted by that act. By no fair construction can it be held to extend to those customary orders resting in the discretion of the court, by which the successive steps in a cause are . timed, and its progress is shaped, until the final decree. The effect of the order in question might have been secured without any entry on the record. The court may, in its discretion, refuse to hear the issues on the original bill until the cross-bill is ready for hearing. The act vests this court with no such supervisory jurisdiction as this appeal imputes to it.

The appeal is dismissed for want of jurisdiction.

Ajppeal dismissed.