author: Mr. Justice Sullivan

text:
    E. S. Auer and Charles S. Nelson, Plaintiffs Below. Charles S. Nelson, Appellant, v. Wm. Meyer Company et al., Appellees.
    Gen. No. 41,796.

      Heard in the second division of this court for the first district at the June term, 1941.
    Opinion filed March 8, 1944.
    Rehearing denied March 24, 1944.
    Whitman, Holton & Tews, of Chicago, for appellant.
    Gustav E. Beerly, of Chicago, for appellees; John F. Difeenderffer, Jr. and Maurice J. Costello, both of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This action was instituted on June 18,1935 by E. S. Auer as plaintiff by filing what is commonly referred to as a minority stockholder’s complaint against the defendants, the Wm. Meyer Company, a corporation, and L. R. Meyer, individually and as executrix of the estate of William Meyer, deceased, Oliver hi or den and Dwight C. Hudson, directors of The Wm. Meyer Company (hereinafter for convenience referred to as the Meyer Co.).

On January 3, 1936, Charles S. Nelson was granted leave to join as copl'aintiff and on the same day an amended complaint was filed by Auer and Nelson. Defendants filed their answer on May 11, 1936 and the cause was referred generally to a master in chancery. After the proofs were closed and argument before the master had been concluded defendants filed an amendment to their answer on April 29,1937, in which they alleged among other defenses that plaintiffs were guilty of laches. In his report the master found that plaintiffs were entitled to an accounting but he also found that they were guilty of laches and limited the accounting to the five-year period immediately preceding the filing of the complaint. The master recommended that the proceeding be dismissed as to L. R. Meyer as executrix of the estate of William Meyer, deceased. Plaintiffs’ objections to the master’s report, which were ordered to stand as exceptions, were overruled by the chancellor who entered a decree in conformity with the master’s report. Prom that decree this appeal is taken by plaintiff Nelson. The complaint and the amended complaint were dismissed as to plaintiff Auer by stipulation between his attorney and the attorney for the defendants after the entry of the decree. Defendant Dwight C. Hudson died during the pendency of this proceeding in the trial court and it was stipulated not to make Ms personal representatives parties defendant.

The original complaint filed by Auer alleged in substance that he was a minority stockholder of Meyer Co., the defendant corporation; that the individual defendants and William Meyer, during his lifetime, as directors and officers of the Meyer Co., had unlawfully paid bonuses to themselves out of the funds and assets of said corporation; and that the amounts and the dates of payment of such bonuses were unknown to plaintiff and were known only to the defendant corporation and its directors. Discovery and an accounting were prayed for.

The amended complaint alleged that “on January 1, 1918, all capital stock of the defendant company was held and owned as follows:

William Meyer..................145 shares
Conrad E. Anderson............ 10 shares
Defendant, L. R. Meyer.......... 5 shares
Defendant, Oliver Nor den........10 shares
Plaintiff, Charles S. Nelson...... 10 shares
Plaintiff, E. S. Auer............ 10 shares
Defendant Company (as Treasury
Stock......................... 10 shares
Total..........200 shares.”

It then alleged that plaintiffs and L. R. Meyer and William Meyer continued to own and hold the aforesaid number of shares of stock in the defendant company until William Meyer’s death; that William Meyer was the husband of defendant L. R. Meyer and died testate on August 6, 1934; that “as executrix and sole beneficiary under the will of William Meyer, L. R. Meyer receives and takes the entire estate of said William Meyer, which includes 145 shares of said capital stock of the defendant company”; and that “continuously since the death of William Meyer the ownership and holding of all the capital stock of said company has been and now is as follows:

Defendant, L. E. Meyer, as said
executrix.....................145 shares
Defendant, L. E. Meyer, individually ........................ 5 shares
Defendant, Oliver Nor den........ 10 shares
Plaintiff, E. S. Auer,........... 10 shares
Plaintiff, Charles S. Nelson...... 10 shares
E. F. Teigler.................... 2 shares
Defendant Company, as Treasury
stock ........................ 18 shares
Total..........200 shares.”

It was further alleged that in the process of exploiting the defendant company the stock of William Meyer and Mrs. Meyer had been continuously controlled and voted as a single block; that by such control they had at all times elected themselves and other persons subservient to them as a majority of the Board of Directors and had elected themselves continuously to the offices of President and Treasurer of. the defendant company; that they had conducted the business of said company and diverted its assets to themselves in an arbitrary manner and in disregard of the best interests of the company; that they had caused and permitted no meetings of stockholders or directors to be held and had maintained and kept no minute book available for plaintiffs and other stockholders; that they had accumulated and continued to hold an excessive surplus in the treasury of the defendant company to plaintiffs ’ injury; that they had from time to time without consultation with or the knowledge of plaintiffs and without authorization by vote of the stockholders or directors of said company caused to be paid to themselves in excess of $500,000 as bonuses, which payments were without warrant in fáct or in law and were wrongful misappropriations; that they had for the purpose of concealing these misappropriations destroyed or refrained from keeping proper books of account and records and had in other ways systematically diverted funds and moneys of the company and had made false entries which an investigation would disclose; and that many of the identical securities wrongfully taken by William Meyer and L. R. Méyer from the reserve fund in the treasury of the Meyer Co. were retained by said William Meyer up to the time of his death and were thereafter inventoried by L. R. Meyer, his executrix, who still claims them as her property. The amended complaint also sought discovery and an accounting.

Defendants’ answer specifically denied every charge of wrongdoing made in the amended complaint.

The pertinent findings contained in the master’s report and his conclusions of fact and law thereon are as follows:

“That during the period beginning with the year 1918 to and including 1934, William Meyer and L. R. Meyer drew large sums in an aggregate amount in excess of $325,000.00 as shown by the federal income tax returns of the company, as follows:
“That said federal income tax returns designated the amounts drawn as aforesaid as ‘Salaries’ paid to William Meyer and L. R. Meyer, whereas these items were recorded upon the hooks of the corporation as items of ‘Bonus.’ Said amounts paid to L. R. Meyer were for services rendered by and for the use of William Meyer.
“That no attempt was made by the officers or directors of the company, or particularly by William Meyer, who was president thereof from the date of the formation of the company to the date of his death, to keep accurate corporate records, or full minutes of said company, other than the appointment of officers and directors of the company from time to time; that no formal resolutions of any kind were drawn or recorded for the payment of said bonuses.
‘ ‘ The salary fixed in the by-laws of the company for the compensation of William Meyer as president was the sum of $50.00 per week.
‘ ‘ The Master finds that it is necessary that plaintiffs establish (1) that a fiduciary relationship exists between plaintiffs and the defendants; (2) that an active concealment of essential facts by William Meyer and L. R. Meyer which caused plaintiffs to be lulled into a sense of security so as to prevent them from making inquiry relative to or ascertaining the financial affairs of the company.
“The relationship of employer and employee or director and stockholder is not such a fiduciary relationship which, standing alone, will cause a Court of equity to excuse the exercise of reasonable diligence or prevent the defense of laches from being invoked against plaintiffs.
“During the five year period directly preceding June 18, 1935, William Meyer and L. R. Meyer- received in the form of salaries for the years 1930, 1931 and 1934, as shown by the income tax returns, the aggregate sum of $15,645.00, which sum as disclosed by the records of the company was considered as ‘bonus’ payments; since said sum can only be considered as salary due William Meyer to the extent of $50.00 per week, the excess thereof must be considered as being applicable to bonuses due William Meyer; the basis for computing the amount of bonus to be received by William Meyer was arbitrarily arrived at by William Meyer and fixed without authorization by the directors of the company.
“Plaintiffs are guilty of laches in the assertion of their rights; that in view of the findings heretofore made which are the basis for the Master’s conclusion of law that plaintiffs are guilty of laches, and particularly the finding that this proceeding must be considered in effect to be the action of the corporation, a Court of equity must follow the law and the Statute of Limitation of five years from July 18, 1935, should be invoked against the plaintiffs.
“Subsequent to the filing of the complaint, the defendant Dwight C. Hudson died and the plaintiffs stipulated not to make his personal representatives parties defendant; that the testimony submitted with respect to the liability of L. R Meyer as executrix under the will of William Meyer, deceased, after excluding testimony inadmissible by reason of statutory restrictions, is insufficient to sustain plaintiffs’ complaint against said estate. The Master finds and recommends that this proceeding.be dismissed as to Dwight C. Hudson and L. R. Meyer as executrix under the will of William Meyer, deceased.
‘ Í The remaining defendants should be required to account for any and all items of bonus payments; that in addition thereto the plaintiffs are entitled to a full and complete accounting, said accounting to be limited to the period subsequent to the period June 18,1930.
‘ ‘ In conclusion the Master recommends that a decree for an accounting be entered in accordance with the findings and conclusions herein contained and that the costs assessed herein be taxed against the Wm. Meyer Company. ’ ’

For a proper understanding and consideration of the questions presented for determination a rather complete statement of facts is necessary.

The Meyer Co. was organized July 6, 1906 with a capital stock of $15,000 divided into 150 shares of $100 each. In the spring of 1913 the company merged with a firm consisting of Norden, Anderson and plaintiff Nelson, who were then conducting a similar business. Shortly thereafter the business of the company began to increase rapidly. At the time of the merger the Meyer Co. increased its capital stock to $20,000, divided into 200 shares, and issued to Nelson, Norden and Anderson 10 shares each. The capital stock was then held as follows: Nelson, Norden and Anderson 10 shares each, William Meyer 145 shares, Mrs. Meyer 5 shares, with 20 shares in the treasury. On December 4,1916, Auer acquired 10 of the treasury shares. On November 11, 1921, Anderson surrendered his 10 shares to the treasury. The defendant Hudson never owned any stock.

The Board of Directors consisted of three members. William Meyer and Mrs. Meyer were elected directors at the first meeting of the stockholders on July 6,1906. They continued as directors by virtue of this election in 1906 until re-elected on January 3, 1922. Without further election they continued as directors until William Meyer’s death. In the beginning, one Fahrney was elected the third director. He was succeeded by Anderson in 1913 and on November 11, 1921 Anderson was succeeded by Tiegler, who served until August 24, 1934, when he and William Meyer were succeeded by Hudson and Norden.

At the first meeting of the Board of Directors on July 7, 1906, William Meyer was elected president and Mrs. Meyer treasurer. By virtue of this 1906 election William Meyer and Mrs. Meyer held their respective offices until re-elected thereto on January 3, 1922 — the ' same day on which they were re-elected directors. No other election of either president or treasurer was held until after the death of William Meyer in 1934. Plaintiff Nelson was neither an officer nor a director of the company at any time. A complete examination of the books and records of the company has not as yet been made, but Claude Wells, an accountant employed by plaintiffs, testified that from a 'spot audit of such books and records of the Meyer Co. as were made available to him, he found sums withdrawn from the Meyer Co. by William Meyer and Mrs. Meyer and credits given them in addition to their regular montMy salaries as shown in the following tabulation:

A recapitulation of the foregoing tabulation shows:

The records of the company show no resolution or other authorization for the payment of bonuses to either William Meyer or Mrs. Meyer.

The ledger of the company does not disclose the payment of royalties to William Meyer. In two or three instances over items shown on the “General Bonus Account” as bonuses paid to William Meyer, at some unknown time some unidentified person wrote in pencil the word “royalties.” Royalty payments as such are found, and found only, in the company’s income tax returns. In January 1936, before the case was referred to the master, plaintiffs took depositions before a commissioner. Mrs. Meyer testified before such commissioner that no royalties were paid by the company to William Meyer or to anyone else up to 1922 and that she had no recollection of any such payments having been made after 1922. The records of the company showed no resolution or other authorization for the payment of royalties at any time. In the minute book, but as no part of the record of any meeting, appears the following in the handwriting of William Meyer which is signed by him:

“I hereby authorize the Wm. Meyer Co. to manufacture and sell until further notice apparatus and equipment under such U. S. and foreign patents issued or to be issued to me, the compensation to me for the use of such patents to be determined by me.
Wm. Meyer
June 19, 1925”

Neither the minute book nor any other record of the company shows that the payment of royalties to William Meyer was authorized by the directors by resolution or otherwise at any time. There was no contract between the company and William Meyer to pay him royalties. Certain royalty credits appear on the company’s journal for the year 1922 and for the three years prior thereto but no entry concerning royalties appears in such journal for any year subsequent to 1922.

Defendants offered in evidence 40 letters patent all or most of which covered apparatus and devices manufactured by the Meyer Co. According to the undisputed evidence the inventions for which these patents issued were in most instances designed and developed not only by William Meyer but by the joint efforts of Meyer and the employees of the Meyer Co. in an experimental shop maintained and manned by said company at its own expense. They were frequently inspired by the devices of the company’s competitors or by suggestions of customers of the Meyer Co. Only 6 of the 40 patents were issued prior to the purported royalty credit of $20,968 to William Meyer in 1919. It does not appear what particular royalties, if any, were attempted to be charged against the company.

The following exhibit was received in evidence:

“Statement of Compensation of Wm. Meter and L. R. Meter and of Rotaltt Expense.

For the Years 1918-1934 both inclusive, as Disclosed by the Federal Income Tax Returns of Wm. Meyer Co. or by Revenue Agent’s Report Thereon.

The records of the Meyer Co. show that, except for the years 1915 and 1916, it paid no dividends since 1913. Mrs. Meyer testified that no dividend had been paid “for 20 years or so.”

The evidence discloses that $194,961 of the bonus payments to William Meyer were made by assignment to him of stocks and other securities belonging to the reserve fund of the Meyer Co. and that $60,000 of such securities were still in the hands of Mrs. Meyer as the sole beneficiary of her husband’s estate.

Mrs. Meyer, in addition to'being a director and treasurer of the Meyer Co., was employed by said company in its office until about 1922 or 1923. Her salary never exceeded $25 a week and William Meyer’s authorized salary as president was $50 a week.

All the withdrawals made by William Meyer and Mrs. Meyer from the Meyer Co. in 1918 and up to the time of Meyer’s death in 1934, under the guise of bonus payments, were received by them without authorization of -the board of directors of said company and the funds and securities so withdrawn were misappropriated in exactly the same manner as were the bonus payments received by them during the five years immediately preceding the filing of the complaint herein. In his report the master made no mention of payments purportedly received by William Meyer as royalties from the Meyer Co. Such payments, if any, as were received by William Meyer under the guise of royalties are in the same category as the- bonus payments and constitute misappropriations, because the records of the Meyer Co. disclose that the directors of said company never authorized the payment of any royalties to William Meyer.

Inasmuch as the master and the chancellor both found that William Meyer and Mrs. Meyer were guilty of misappropriating the payments received by them by way of bonuses, “beginning with the year 1918 to, and including 1934,” the principal question presented for our determination is whether the chancellor erred in confirming by his decree the further finding of the master that plaintiff was guilty of laches and that therefore the accounting should be restricted to the period of five years immediately preceding the filing of the complaint.

It should be noted that the master also found that the Meyer Co. was conducted by .Wm. Meyer as a “one-man corporation” and was controlled by him and his wife and that the amounts of the bonus payments re-, ceived by them were “arbitrarily arrived at by Wm. Meyer and fixed without authorization by the directors of the company. ’ ’ It should also be noted that defendants filed no objections to the master’s report and are therefore bound by the findings contained therein.

We will now consider the findings of the master upon which he predicated his conclusion that plaintiff was guilty of laches. His report found that “it is necessary that said plaintiffs establish (1) that a fiduciary relationship exists between plaintiffs and the defendants ; (2) that an active concealment of essential facts by William Meyer and L. R. Meyer which caused plaintiffs to be lulled into a sense of security so as to prevent them from making inquiry relative to or ascertaining the financial affairs of the company”; and that “the relationship of . . . director and stockholder is not snch a fiduciary relationship, which, standing alone, will cause a court of equity to excuse the exercise of reasonable diligence or prevent the defense of laches from being invoked against plaintiffs. ’ ’

Although the master found that the charges of fraud “set forth in the complaint and amended complaint filed herein by the plaintiff have not been sustained,” in our opinion such finding was against the manifest weight of the evidence. As already shown, the master himself found that the bonus payments received by the Meyers were in effect misappropriations and not only the documentary proof but the facts and circumstances in evidence show conclusively that the misappropriations were fraudulently made. Since the Meyers occupied the fiduciary relation of trustees and dealt with the subject matter of the trust relationship in such a manner as to gain advantage to themselves, they must be deemed to be guilty of actual fraud. (Doner v. Phoenix Joint Stock Land Bank, 381 Ill. 106, 114.)

Was the relationship between the Meyers as directors of the Meyer Co. and the plaintiff stockholder such a fiduciary relationship as excused Nelson from the exercise of reasonable diligence to discover the fraudulent misappropriations on the part of the Meyers ? In Ellis v. Ward, 137 Ill. 509, in discussing the nature of the relationship between the directors of a corporation and the corporation and the stockholders thereof and in holding that all of the elements of an express trust exist in such relationship and that no mere lapse of time can bar the recovery of funds of a corporation misappropriated by its directors, the court said at pp. 520, 521:

“It is a principle of general application, and recognized by this court, that the assets of a corporation are, in equity, a trust fund, (St. Louis and Sandoval Coal and Mining Co. v. Sandoval Coal and Mining Co., 116 Ill. 170,) and that the directors of a corporation are trustees, and have no power or right to use or appropriate the funds of the corporation, their cestui que trust, to themselves, or to waste, destroy, give away or misapply them. (Holder v. LaFayette, Bloomington and Mississippi Ry. Co., 71 Ill. 106; Cheeney v. LaFayette, Bloomington and Mississippi Ry. Co., 68 id. 570; 1 Morawetz on Private Corp. secs. 516, 517.) And it is equally well settled, that no lapse of time is a bar to a direct or express trust, as between the trustee and cestui que trust. (Chicago and Eastern Illinois Railroad Co. v. Hay, 119 Ill. 493; Wood on Limitation of Actions, sec. 200, and cases cited in note.) If the trust assumed by the directors of a corporation in respect of the corporate property under their control is to be regarded as a direct trust, as contradistinguished from simply an implied trust, then it is apparent, under the rule announced, the statute presents no bar to this proceeding by the receiver of the corporation. Ordinarily, an express trust is created by a deed or will; but there are many fiduciary relations established by law, and regulated by settled legal rules and principles, where all the elements of an express trust exist and to which the same legal principles are applicable, — and such appears to be the relation established by law between directors and the corporation. 2 Pomeroy’s Eq. sec. 6; id. secs. 1088-1090, 1094 And see, also as respects stockholders, Hightower v. Thornton, 8 Ga. 486; Payne v. Bullard, 23 Miss. 88; Curry v. Woodward, 53 Ala. 371. The Statute of Limitations therefore presented no bar to a recovery by the receiver.” (To the same effect are Dixmoor Golf Club, Inc. v. Evans, 325 Ill. 612; Farwell v. Pyle-National Elec. Headlight Co., 289 Ill. 157; Klein v. Independent Brewing Ass’n, 231 Ill. 594.)

In so far as we have been able to ascertain, the principles of law enunciated in the Ellis case have never been overruled or modified. Defendants cite Becker v. Billings, 304 Ill. 190 and Foss v. People’s Gas Light & Coke Co., 241 Ill. 238, as being in conflict with the broad principles applicable to directors in their trust capacity as announced in the Ellis case. It would serve no useful purpose to discuss the Becker and Foss cases since the facts are not comparable in either of them with the facts here and entirely different questions of law were presented in those cases.

In view of his express findings that the Meyer Co. was conducted as a “one-man corporation,” that the one man was William Meyer and that no one “at any time doubted the integrity of William Meyer,” the master might well have found that there was a trust relationship between William Meyer and plaintiff Nelson, independent of that arising out of the corporate directorship. In Lipscomb v. Allen, 298 Ill. 537, the court said at pp. 544, 54.5:

‘ ‘ ‘ The term fiduciary or confidential relation, as used in this connection, is a very broad one. It has been said that it exists, and that relief is granted, in all cases in which influence has been acquired and abused, —in which confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another. The only question is, does such a relation in fact exist?’ (Mayrand v. Mayrand, 194 Ill. 45.) ‘It is settled by the overwhelming weight of authority that the principle extends to every possible case in which a fiduciary relation exists as a fact, in which there is confidence reposed on one side and the resulting superiority and influence on the other. The relation and the duties involved in it need not be legal. It may be moral, social, domestic or merely personal.’ (2 Pomeroy’s Eq. Jur. — 3d ed. — sec. 956.) ”

It is the established law of this State that the failure to use diligence is excused where there is a relationship of trust and confidence which renders it the duty of the party committing the fraud to disclose the truth to the other. It was stipulated before the master that plaintiff Nelson had no knowledge of the bonus or royalty payments received by the Meyers until shortly before he became a coplaintiff in this proceeding. In Farwell v. Great Western Tel. Co., 161 Ill. 522, wherein a bill in equity was also filed by minority stoclcholders, the language of the court is peculiarly applicable to the situation presented here. There it was said at pp. 567, 595 and 596:

“No attempt was'made by the defendants to show knowledge on the part of the complainants or the company of the June 18 contract. The whole theory of the defense was confined to a denial.
" . . .
“Nor can laches be imputed to these complainants who had no knowledge of the June 18 contract until about one month prior to the time of filing their bill in this cause. It was of such a character that the parties to it would be induced to conceal it on every principle of self-interest and care for their reputation for honesty; and the strenuous efforts of counsel for complainants in this cause to produce the original or to account for it, their final resort to a copy, and the laborious attempts of the parties to that contract to exclude the copy, are evidence of the difficulty with which these complainants were confronted in obtaining knowledge thereof. Neither is there evidence in this record of any facts known to complainants which would put them on inquiry. In Michoud v. Girod, 4 How. 503, it is said: 1 In general, lapse of time is no bar to a trust clearly established to have once existed, and where fraud is imputed and proved, length of time ought not to exclude relief. . . . Within what time a constructive trust will be barred must depend on the circumstances of the case. There is no rule which excludes the consideration of circumstances, and in a case of actual fraud we believe no case can be found in the books in which a court of equity has refused to give relief within the lifetime of either of the parties upon whom the fraud is proved, or within thirty years after it has been discovered, or becomes known to the party whose rights are affected by it.’
" . . .
“With reference to whether a cause of action is barred in equity the rule may be stated, that where a cause of action arises from a fraud, the Statute of Limitations will not begin to run nor laches apply until the discovery of the fraud, or from the time when the fraud could have been discovered by the exercise of reasonable diligence; but in the latter case the failure to use diligence is excused where there is a relation of trust and confidence, rendering it the duty of the party committing the fraud to disclose the truth to the other. Caswell v. Caswell, 120 Ill. 377; Sloan v. Sloan, 102 id. 581; Jones v. Lloyd, 117 id. 597; Harris v. McIntyre, 118 id. 275; Vigus v. O’Bannon, id. 334; Reynolds v. Sumner, 126 id. 58; Whitlock v. McClusky, 91 id. 582; Prevost v. Gratz, 6 Wheat. 481; Gillett v. Wiley, 126 Ill. 310.” (Italics ours.)

(To the same effect are Klein v. Independent Brewing Ass’n, 231 Ill. 594; Farwell v. Pyle-National Elec. Headlight Co., 289 Ill. 157; Voorhees v. Campbell, 275 Ill. 292 and Peim v. Fogler, 182 Ill. 76.)

Being an affirmative defense, the burden of proving laches was upon defendants and not upon plaintiff, as assumed by the master. Therefore the finding of the master that the burden was upon plaintiff to establish that there was “an active concealment of essential facts by William Meyer and L. R. Meyer which caused plaintiffs to be lulled into a sense of security so as to prevent them from making inquiry relative to or ascertaining the financial affairs of the company” was contrary to law. So also was the finding of the master that11 the relationship of . . . director and stockholder is not such a fiduciary relationship which, standing alone, will cause a court of equity to excuse the exercise of reasonable diligence or prevent the defense of laches from being invoked against plaintiffs.” It clearly appears from the applicable principles announced in the foregoing decisions that the finding of the master and the chancellor that plaintiff was guilty of laches was contrary to the established law of this State.

While it is true that the Meyers between them owned 15/18ths of the stock of the Meyer Co. and might have honestly taken openly by way of dividends properly declared the major portion of the funds which they took secretly, the fact still remains that they misappropriated the funds of the company by paying to themselves the unauthorized bonuses and royalties. The conclusion is inevitable that they preferred to misappropriate the funds of the company rather than pay dividends to the minority stockholders.

There is no evidence in the record to support the finding of the master that the amounts received by Mrs. Meyer by way of bonuses were “for services rendered by and for the use of William Meyer.” If it were true that her services, if any, were so rendered, it is difficult to understand why in filing the income tax returns of the Meyer Co. the bonus payments received by her were, conveniently or otherwise, credited to her own use.

Defendants ’ counsel sought to justify the bonus payments received by the Meyers by showing that plaintiff Nelson and other employees of the Meyer Co. also received bonus payments. The bonus payments received by said employees were not at all comparable with the bonus payments received by the Meyers. As the master found in respect to the bonus payments made to the employees, “the company pursued a policy of compensating its employees for services rendered by the payment of a salary smaller than the usual compensation paid employees for similar services and by the payment of a bonus to each employee, determined solely by William Meyer arid based generally upon the amount of business of the company during the preceding year.” The bonuses paid by the Meyers to themselves bore no relation to their fixed salaries or to either the net profits or the gross receipts of the company. According to the income tax returns, Mrs. Meyer received her largest so-called bonus of $30,000 in 1928, when she wasn’t even in the employ or on the payroll of the Meyer Co. It appeared that during its more prosperous years the company accumulated a large surplus and it also appeared from its records that in 1928, when it suffered a net loss of $3,002.38, Meyer received a bonus of more than $68,000 and that in 1926, when the net income of the company was only $657.33, he received a bonus of $62,928.25.

In regard to the findings of the master that there was no evidence of active concealment on the part of the Meyers and that plaintiffs could have informed themselves at any time of the bonus payments to the Meyers, it should be stated that if the conduct of Mrs. Meyer since the institution of this proceeding is any criterion as to what the attitude of the Meyers would have been as to the concealment by them of the bonus payments, it is fair to assume that they would have concealed such payments in so far as they were able.

It is impossible within the confines of this opinion to set forth in detail the numerous instances that evidenced the studied effort on the part of Mrs. Meyer to conceal and withhold the truth as to the bonus payments received by her and the bonus and royalty payments received by William Meyer but the record is replete with such instances. One instance is typical. In the summer of 1935, before Nelson became a co-plaintiff and before the amended complaint was filed, defendants’ attorney granted permission to Auer’s auditor to examine the books and records of the Meyer Co. During the course of his examination the auditor discovered that the accounts of William Meyer and of Mrs. Meyer and the bonus account were missing from the looseleaf general ledger. The minute book of the corporation covering the period in question was also missing. Questioned about the missing ledger sheets containing said accounts and the minute book, Mrs. Meyer and the bookkeeper professed ignorance as to the wherabouts of same, and Mrs. Meyer refused to produce them. In 1937 at the master’s hearing Mrs. Meyer reluctantly admitted, when forced to do so, that the missing ledger accounts and minute book were in her attorney’s office and had been there for a year or two. After the master had signed a certificate for presentation to the chancellor that the missing accounts and minute book were essential to the hearing then in progress before him, they were finally produced.

The defense of this case can only be properly characterized as shifty. Mrs. Meyer’s testimony is a maze of contradictions and evasions and contains within itself its own impeachment. Every possible effort was made by her and her attorney to impede the discovery of the truth as to the bonus and royalty payments and, as has been seen, the most essential records of the company showing such payments were removed from its office and suppressed and concealed until she was finally forced to produce them.

In Lockwood v. Rose, 125 Ind. 588, preliminary to trial and in preparation therefor, depositions were taken under a statute similar to our own. In this preliminary proceeding appellant refused to produce to be read in evidence an important letter “until he was compelled to do so by order of the court.” It was argued that “no inference can be drawn against a party for not voluntarily producing papers where the code provides a means for securing their production, and that parties may stand upon their legal rights without any imputation of bad faith on that account. ’ ’ There the court said at pp. 594, 595:

“It is often important to know whether a party to a suit is or is not willing that all the facts shall be known to the court or jury, or whether he has or has not suppressed or attempted to suppress important evidence in the cause. The fact that the code provides a means for compelling an unwilling party to furnish evidence under his control does not, in our opinion, affect the question of the inferences to be drawn from an attempt or refusal on his part to furnish the facilities at his command, for a fair and full investigation of the facts in the case.”

The master recommended that “the costs assessed herein be taxed against the Wm. Meyer Company.” In this connection it should be stated that Oliver Nor den did not become a director of the company until after William Meyer’s death and it appears that he is merely a nominal defendant. That the costs should have been assessed against defendant Mrs. L. it. Meyer, individually, and not against the Meyer Co. is self evident, and the mere statement of this proposition is sufficient without further comment. The master and the chancellor found that “the testimony submitted with respect to the liability of L. R. Meyer as executrix under the will of William Meyer, deceased, after excluding testimony inadmissible by reason of statutory restrictions, is insufficient to sustain plaintiffs’ complaint against said estate.” In our opinion this finding is against the manifest weight of the evidence. There were no statutory restrictions against the testimony of the accountant, Claude Wells. His testimony and the documentary evidence in the record show clearly and conclusively that William Meyer was guilty of misappropriating funds of the Meyer Co. and his estate should be required to account for the funds so misappropriated by him.

Other points have been urged and considered but in the view we take of this case we deem it unnecessary to discuss them.

For the -reasons stated herein the decree of the circuit court is reversed in so far as it restricted the accounting to the five year period immediately preceding the filing of the complaint, assessed the costs against the Wm. Meyer Company and dismissed this proceeding as to L. R. Meyer, as executrix under.the will of William Meyer, deceased, and the cause is remanded with directions that there be included in the decree an order that the Wm. Meyer Company, L. R. Meyer, individually, L. R. Meyer as executrix under the will of William Meyer, deceased, and Oliver Nor den fully and completely account to plaintiff, Charles S. Nelson, for all bonuses received by L. R. Meyer and all bonuses and royalties received by William Meyer during the period from and including 1918 to and including 1934, that the costs be taxed against L. R. Meyer, individually, that the decree include a provision that plaintiff, Charles S. Nelson, be reimbursed out of the fund recovered for the Wm. Meyer Company for the reasonable costs and expenses incurred by him or for which he became obligated in the prosecution of this suit and that the reference to take the accounting include a direction to the master for, a hearing on the issue of plaintiff’s reasonable expenditures in connection with this proceeding in his effort to create the aforesaid fund for the Wm. Meyer Company.

Decree reversed in part and cause remanded with directions.

Friend, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    In re Estate of Laure H. B. Tarpey, Deceased. Ethel Tarpey, Appellant, v. Edward V. Dake and United States Fidelity and Guaranty Company, Appellees.
    Gen. No. 42,163.

      Heard in the second division of this court for the first district at the February term, 1942.
    Opinion filed March 8, 1944.
    David K. Tone and Charles J. Monahan, both of Chicago, for appellant.
    Leonard A. Weinberg, of Chicago, for certain appellee.
    Eugene P. Kealy, of Chicago, for certain other appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

Ethel Tarpey, the widow of Alfred F. Tarpey and the administrator of his estate, filed an amended petition and an amendment thereto in the probate court requesting that the final account of Edward V. Dake, administrator of the estate of Laure H. B. Tarpey, deceased, which had theretofore been approved, be vacated and set aside, that said administrator be required to restate his final account, that a certain assignment and “Appearance and Consent” executed by the aforesaid Alfred F. Tarpey and filed in said estate be declared void, and that the surety bond of Dake as such administrator be reinstated. The probate court entered an order sustaining Dake’s motion to strike the amended petition as amended (hereinafter for convenience referred to as petition). The petitioner, Ethel Tarpey, perfected an appeal to the circuit court from said order of the probate court. Upon a hearing in the circuit court, the trial judge, after inspecting the assignment, consent and appearance and the final account and report filed in the probate court by Dake as administrator of the estate of Laure H. B. Tarpey, entered an order sustaining Dake’s motion to strike Ethel Tarpey’s petition and, petitioner electing to abide by her petition, the relief prayed for in same was denied. Petitioner appeals from the order of the circuit court.

The petition of Ethel Tarpey, as administrator of the estate of her deceased husband, Alfred F. Tarpey, alleged substantially the following facts: Ethel Tarpey was the sole heir of Alfred F. Tarpey. Alfred F. Tarpey was the sole heir and beneficiary of his deceased mother’s estate, in which there were assets amounting to approximately $30,000 net. Tarpey was an habitual drunkard, whose physical health and mental fa.culti.es had been impaired. Dake was Tarpey’.s attorney and he prevailed upon Tarpey to have him (Dake) appointed administrator of his mother’s estate. Shortly thereafter, and, while Dake was not only Tarpey’s attorney but the administrator of his mother’s estate, said Dake fraudulently procured without consideration an assignment of all the assets of his mother’s estate from Tarpey, who, because of the impairment of his mental faculties was incapable of understanding and did not understand the nature and effect of said assignment. Dake induced Tarpey to make the assignment by fraudulently representing to him and causing him to believe that by said assignment he (Dake) was going to create a trust for his (Tarpey’s) benefit. Attorney Dake by similar means fraudulently procured the execution by Tarpey of his “Appearance and Consent,” whereby said Dake fraudulently procured the entry of the order by the probate court approving his final account and report as administrator of the estate of Laure II. B. Tarpey, with the result that Attorney Dake appropriated to himself all the assets of the estate of Tarpey’s deceased mother. The petition concluded with a prayer for the relief already indicated.

The principal question presented for our consideration is whether the petition sufficiently alleged a state of facts that warranted granting the equitable relief sought. In our opinion the mere recitation of the facts alleged is sufficient to show that it did. The motion of Edward V. Dake to strike Ethel Tarpey’s petition admitted all the well pleaded allegations of fact contained therein.

Although, in so far as the record discloses, he did not raise the question of jurisdiction in either of the courts below, Attorney Dake now contends that the probate court has no jurisdiction to grant the relief requested in the petition. There is no merit in this contention. Every court has inherent power to vacate its own order, the entry of which has been fraudulently procured and, if as the petition alleges, Tarpey’s execution of his “Appearance and Consent” to the approval of the administrator’s final account and report was fraudulently procured, then it follows that the court’s order approving said final account and report was fraudulently procured, because in the absence of such written “Appearance and Consent” of Tarpey, the sole beneficiary of the estate of Laure H. B. Tarpey, the order of approval would not have been entered by the probate court without notice to him.

Attorney Dake also contends that the probate court has no authority to determine whether or not the assignment made by Tarpey to him individually was void and that said court has no authority to compel him to restate his account as administrator. It has been repeatedly held that the probate court has equitable jurisdiction to consider and determine such matters as are involved in the petition filed herein. In Kinsey v. Bushman, 261 Ill. App. 481, it appeared that Carl D. Kinsey was the stepfather of Letitia Vance Bushman and that he was appointed administrator of her mother’s estate; that Letitia Vance Bushman was the sole heir of the estate of her mother under the latter’s will; that Carl D. Kinsey had secured by the improper use of his fiduciary relationship two assignments to himself from his stepdaughter, Letitia Vance Bushman, of her entire interest in her mother’s estate; that on May 5,1927, more than two years after said administrator’s final account had been approved and he had been discharged as such administrator, Letitia Vance Bushman filed her petition in the probate court asking that said order of discharge be set aside, for leave to object to the administrator’s final account and for a rule on said administrator to pay her her distributive share of the estate. The probate court held that the two assignments made by Letitia Vance Bushman to her stepfather, Carl D. Kinsey, were void and ordered his final account as administrator restated as requested in the petition filed by said Letitia Vance Bushman. As in the instant case, the administrator, Kinsey, contended that the probate court was without jurisdiction to vacate the order approving his final account and to order him to restate such account. In that case this court said at pp. 487, 488 and 489:

“It is insisted on behalf of the defendant Kinsey that the probate court did not have jurisdiction to settle a controversy involving the rights of an assignee to a legatee’s share of an estate. The Constitution of Illinois provides that probate courts shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, etc. . . .’ Numerous decisions of this State have recognized the rule that probate courts have equitable jurisdiction in matters pertaining to the administration of estates. Wadsworth v. Connell, 104 Ill. 369; Shepard v. Speer, 140 Ill. 238; In re Estate of Merts, 246 Ill. App. 283; Trego v. Estate of Cunningham, 267 Ill. 367.
" . . .
“While it has been held as stated that the probate court is possessed of equitable jurisdiction in matters of administration of estates, it does not necessarily follow that it has equitable jurisdiction in all classes of cases. The question becomes pertinent as to whether or not the transaction involved in this case appertains to a matter involving the administration of the estate. The probate court had the right to examine the account of the administrator and, in the event it was incorrect, had the authority to restate it. The administrator was already in court as administrator and subject to the orders of the probate court. Kinsey, as administrator, had qualified and accepted the responsibility of administering- the estate and it became his duty to see that the assets belonging therein should be collected and inventoried. The claim that he was not bound individually, in our opinion, is without force by reason of the fact that he was in the probate court as administrator, and the assignor of the property in question was in the same court as claimant under the will. There was no need of compelling petitioner to go to another court to carry on an extended litigation against Kinsey in order to compel Kinsey, individually, to turn over to Kinsey, as administrator, property in his hands. The identical question was before this court in the case of People v. Higdon, 204 Ill. App. 309, and in that case it was held the probate court had the right to determine the rights and interests of an assignee in and to a distributive share of the estate and to order distribution to the assignor who was an heir and entitled to be heard in the proceeding in that court. To the same effect see In re Estate of Bennett v. Bennett, 168 Ill. App. 658.
" . . .
“We are of the opinion that the probate court had jurisdiction under its equitable powers to hear and determine the questions involved in this proceeding and to enter the order restating the administrator’s account and ordering distribution in accordance with its finding.”

The final account and report of Dake, as administrator, was filed and approved March 7, 1938 and the petition herein was not filed until June 24, 1941, but it has been repeatedly held that the probate court in the exercise of its equitable jurisdiction might on motion or petition at a subsequent term set aside its own order because of fraud, accident or mistake. (Heppe v. Szczepansld, 209 Ill. 88; Strauss v. Phillips, 189 Ill. 9; Millard v. Harris, 119 Ill. 185; Marshall v. Coleman, 187 Ill. 556.) In the Heppe case the court said at p. 99:

“In Schlink v. Maxton, 153 Ill. 447, it was held that the Probate Court in the exercise of its equitable jurisdiction might on motion at a subsequent term set aside its own order, allowing a claim against an estate if mistake or fraud had intervened; and in that case it was said, ‘ so here, although the term of court, at which an allowance was made, has passed, it may, for such cause as would move a court of equity upon a bill filed, entertain a motion to set aside the allowance.’ ”

We are impelled to hold that the trial court erred in striking the amended petition and the amendment thereto of Ethel Tarpey and for the reasons stated herein the order of the circuit court of Cook county sustaining the motion of Edward Y. Hake to strike said petition is reversed and the cause is remanded with directions that said motion of Edward Y. Hake be denied, that the respondents Edward Y. Hake and United States Fidelity & Guaranty Co., be ruled to answer the amended petition and the amendment thereto of Ethel Tarpey, administrator of the estate of Alfred F. Tarpey, and that such further proceedings be had as are not inconsistent with the views herein expressed.

Reversed and remanded with directions.

Friend, P. J., and Scanlan, J., concur.


author: Justice Wolfe.

text:
    Elias H. Trumbo, Administrator of Estate of Jeanette Trumbo, Deceased, et al., Appellees, v. Chicago, Burlington and Quincy Railroad Company, Appellant.
    Gen. No. 9,914.
    Dove, P. J., dissents.
    Heard in this court at the October term, 1943;
    opinion filed January 26, 1944;
    rehearing denied May 2, 1944.
    H. L. Richolson, O. M. Anderson, C. A. Conway, R. E. Skov and C. W. Krohl, for appellant; Eldon M. Martin, of counsel; Hibbs & Pool and Chester E. Jacobsen, for appellees.
   Opinion by

Justice Wolfe.

Not to be published in fuU.


author: Presiding Justice Friend.

text:
    John M. Hannaher et al., Appellees, v. Blue Cab Company, Inc., Appellant.
    Gen. No. 42,801.

      Heard in the second division, first district, this court at the October term, 1943;
    opinion filed March 8, 1944.
    W. Harold Rutherford and Richard E. Keogh, for appellant; Pay Warren Johnson, of counsel; Joseph D. Ryan, Louis P. Miller and Clausen, Hirsh & Miller, for appellees.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Fredrick W. Sedgwick, Appellant, v. Rosalind Barnes Sedgwick, Appellee.
    Gen. No. 42,814.
    Heard in' the second division, first district, this court at the October term, 1943;
    opinion filed March 8, 1944;
    rehearing denied April 6, 1944.
    Francis J. Benda and Michael J. Ahern, for appellant; Casimir R. Wachowski, of counsel; John H. Lyle and Harry S. Ditehburne, for appellee.
   Opinion by

Presiding Justice Friend.

Hot to be published in full.


text:
    Ethel Dowling et al., Appellees, v. Arthur E. Sangdahl and W. Forrest Ogle, Appellants.
    Gen. No. 42,824.
    Heard in the second division, first district, this court at the October term, 1943;
    opinion filed March 8, 1944;
    rehearing denied March 22, 1944.
    Harry S. Ditehburne, for appellants; Edward G. Berglund and Benjamin F. Morrison, for appellees.
   Opinion by

Presiding Justice Friend.

Hot to be pub-

lished in fuU.


text:
    People of the State of Illinois, Defendant in Error, v. Wesley J. Moore, Plaintiff in Error.
    Gen. No. 42,882.
    Heard in the second division, first district, this court at the October term, 1943;
    opinion filed March 8, 1944.
    Ellis & Westbrooks, plaintiff in error; Richard E. Westbrooks, of counsel; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    Harold Manzeske, Appellee, v. Yellow Cab Company and Herbert Dittman, Appellants.
    Gen. No. 42,255.

      Heard in the second division, first district, this court at the June term, 1942;
    opinion filed March 8, 1944;
    rehearing denied April 6, 1944.
    Miller, Gorham, Weseott & Adams, for appellants; Herbert C. De Young and Charles F. White, of counsel; Royal W. Irwin, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Rome Soap Manufacturing Company, Respondent, v. John T. La Forge and Sons, Inc., et al., Defendants. John T. La Forge and Sons, Inc., Petitioner, v. New York Central Railroad Company and Chicago, Burlington and Quincy Railroad Company, Respondents.
    Gen. No. 42,742.
    Heard in the second division, first district, this court;
    opinion filed March 8, 1944.
    Large, Reno & Zahm and Taylor, Miller, Busch & Boy den, for petitioner; Ralph S. Zahm and Charles R. Sprowl, of counsel; Packard, Barnes, Schumacher & Gilmore and Charles Edward Newton, for respondent; Sidney C. Murray, Frederick W. Flott and Victor L. Lewis, for certain respondent; C. W. Krohl and C. A. Conway; for certain other respondent.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Justice Sullivan.

text:
    Elena Bassi, Appellee, v. Robert E. L. Brooks and Josephine Brooks, Appellants.
    Gen. No. 42,210.
    Heard in the second division, first district, this court at the April term, 1942;
    opinion filed March 8, 1944.
    Edward E, Fleming, for appellants; Ewart Harris, of counsel; Simon Herr and A. N. Gualano, for appellee; Harold Tucker, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Theodore Tylke and Mary Tylke, Appellees, v. Norwegian American Hospital, Inc. and Margaret Amundson, Defendants Below. Norwegian American Hospital, Inc., Appellant.
    Gen. No. 42,695.
    Heard in the second division, first district, this court at the June term, 1943;
    opinion filed March 8, 1944.
    C. E. Heckler, for appellant; Morris A. Haft, for appellees.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Davis Personnel Service, Inc., Appellant, v. Josephine Kasper, Appellee.
    Gen. No. 42,745.
    Heard in the second division, first district, this court at the October term, 1943;
    opinion filed March 8, 1944.
    Sidney J. Gold-stein, for appellant; no appearance for appellee.
   Opinion by

Justice Sullivan.

Not to be published in full.


author: Mr. Presiding Justice Culbertson

text:
    A. J. Wuellner and J. C. Fallon, Copartners, Trading as J. J. Wuellner and Son, Appellants, v. Illinois Bell Telephone Company, Appellee.
    Heard in this court at the February term, 1944.
    Opinion filed February 28, 1944.
    Behearing denied May 23, 1944.
    Verlie, Eastman & Schlafly and Emerson Baetz, all of Alton, for appellants.
    Sidley, McPherson, Austin & Burgess, of Chicago, and Warnock, Williamson & Burroughs, of Edwardsville, for' appellee; Howard P. Robinson, of Chicago, and George D. Burroughs, of Edwardsville, of counsel.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Madison county, dismissing the amended complaint of appellants, A. J. Wuellner and J. C. Fallon, Copartners, engaged in business as J. J. Wuellner & Son (hereinafter called plaintiffs), and rendering judgment in bar, in favor of the appellee, Illinois Bell Telephone Company, a corporation (hereinafter called defendant). The plaintiffs elected to stand by their amended complaint, and contend in this court that the court below erred in sustaining the defendant’s motion to dismiss such amended complaint.

The amended complaint consists of two counts. In the first count plaintiffs, after alleging that they were and are engaged in the construction business, attached a copy of a contract in writing whereby the plaintiffs undertook to construct for defendant, at Woodriver, Illinois, a one-story building. The contract is attached to and made a part of the complaint by reference. The first count goes on to say that the contract was drawn by defendant, and was based upon a so-called “cost-plus scheme” but obliges defendant to pay only the actual cost of the work done and material furnished by plaintiffs, plus a. fee for overhead and profits for plaintiffs ; that the contract purports to fix a maximum for the cost and fee of $43,475, but that it further contains provisions obligating plaintiffs to make detailed reports of costs, and in paragraph H directs plaintiffs to submit to the' defendant, through its agent and architect, a final statement, complete and analyzed, showing plaintiffs ’ total cost, and that such paragraph further obliges defendant to object to such final statement within 30 days of its submission, if defendant is not to be bound thereby, and provides if notice of the objection is not given within 30 days, the final statement shall be conclusive. Such count of the complaint goes on to allege that a final statement showing a total cost and fee of $53,309.51 was submitted, and that defendant notified plaintiffs of its objection to only $158.59, leaving a total cost and fee, without objection by defendant, of $53,150.92. Such count goes on to allege performance in full by plaintiffs and demands payment of the balance remaining unpaid, in the sum of $53,150.92, and refers to the fact that the defendant has tendered the balance which would-be necessary to make payment on the basis of the cost and fee of $43,475 (such amount was thereafter actually paid in court, and the only issue raised by the pleadings is whether or not the plaintiffs can recover in excess of the maximum fixed in the contract, of $43,475).

The provision of the contract to which plaintiffs make reference in the first count of the complaint is what is referred to as an “audit” provision in the contract. It provides specifically that when the work provided for has been fully and finally completed and the contractor has rendered to the architect, for the owner, a full and complete itemized statement in writing, referred to as a “final statement” showing the actual cost to the contractor of the work performed, the owner is to have the right to have the statement audited, and within 30 days he can object in writing to any of the items specified therein. It further provided that in event the owner shall not give such notice, the statement shall be conclusive of the actual cost of the work, and a certificate is to be accordingly issued by the architect. That provision must, however, be read in connection with other provisions of the contract, notably section B, designated “Guaranteed Maximum Cost.” This provision reads as follows:

“The work covered by this agreement is to be performed by the contractor on the basis of actual cost of labor, material and equipment plus a fee of $3200.00 for overhead and profit to the contractor. The contractor guarantees that the actual cost plus fee will not exceed the amount of this agreement $43,475.00. Should said actual cost plus contractor’s fee be less than the guaranteed maximum amount, 20% of the difference or savings shall be paid to the contractor as additional compensation and the remaining 80% shall revert to the Owner. Should said actual cost plus contractor’s fee exceed the guaranteed maximum amount, such excess shall be borne by the contractor. It is the intent hereof that the cost to be paid by the Owner for work covered by this agreement shall in no event exceed the amount set forth, and further, that said contractor guarantees this. The guaranteed maximum amount may be increased or decreased by additions or deductions, but only by change orders in writing signed by the Architect and the Owner, as provided for by Article Five herein. In connection with any such increase or decrease in the guaranteed maximum amount, the order shall include for contractor’s overhead and profit 7%% of the estimated cost of the work to be added or omitted.”

It is obvious that the audit provision was simply one which was consistent with the clause referring to the guaranteed maximum cost, and was designed to afford the owner an opportunity to participate in any difference or savings in actual cost, to the extent of 80% thereof, as provided in such section. There is nothing-in the provision referred to as the audit provision which makes it obligatory upon defendant to object to the statement if the maximum cost provision is applied. It was obviously designed only for the purpose indicated by the express language of such provision; that is, to fix the actual cost of the work; but there is nothing in such provision which either expressly or impliedly authorizes a right of action for a sum in excess of the maximum provision simply by reason of the omission of the defendant to object to such statement.

The second count of the amended complaint, in addition to repeating and realleging the general allegations referred to in the first count, avers that the contract, when entered into, purported to fix the maximum cost (which maximum cost figure was set forth in section 2, and A, and B) of the contract, with the words, ‘ ‘ Guaranteed Maximum contract amount — $43,475.00,” and, “the said defendant only agrees to pay to the said contractor not to exceed the sum of $43,475.00. . . .” in addition to the section hereinabove fully set forth as section B thereof, referring to guaranteed maximum cost.

Such second count goes on to state that said provisions were for the sole and exclusive benefit of the defendant, and “. . . they were subsequent to the date of the said contract and during the performance of the said contract by the plaintiffs, waived and abrogated by the defendant, through its agents and servants, by —‘ (a) demanding the use and employment, in the construction of the said building, of materials other than those required by and in substantial conformity with the specifications referred to in the said contract, when such materials could not be used and employed without increasing the cost and fee for the said building above $43,475.00; and (b) repeatedly, and without reasonable cause, delaying the approval of plans, drawings and materials submitted by the plaintiffs and their sub-contractors for use in the said building and its construction, thereby causing the plaintiffs to become liable for and expend sums increasing the cost' and fee for the said building above $43,475.00.’ ”

The defendant contends that the circuit court properly dismissed the amended complaint for failure to state a cause of action and for substantial insufficiency in law, for reasons which will be hereinafter set forth. It is first contended that the provisions of the contract which limit the amount to be paid to the plaintiffs and which require that no additional amounts be paid, unless authorized by a written statement, signed by the architect and defendant, govern the cause of action. The contract expressly provides, in section B herein-above set forth, that the guaranteed maximum amount may be increased or decreased only by change orders in writing, signed by the architect, as provided in article 5 of the contract. In article 5, the contract provides that changes or alterations may be made “provided that no new work of any description done on the premises, or any work of any kind whatsoever shall be considered an extra or a charge in excess of the amount herein agreed to be paid, unless a statement in writing of the amount to be paid for the same shall be submitted by the contractor and agreed to and signed by the architect and said owner before its commencement; . . . .”

In the determination of this matter before this court the provisions of the contract which are set forth as part of the amended complaint must be construed by this court, and it is such provisions which govern (unless they have been waived) rather than allegations of the complaint which may be inconsistent therewith (Marcus v. S. S. Kresge Co., 283 Ill. App. 556; Woods v. First Nat. Bank of Chicago, 314 Ill. App. 340). If this were an action for “extras” alone, or for additional amounts under the expressed provisions of the contract, the defendant’s position on the first point, as set forth herein, would be well taken. It is the plaintiffs ’ contention, however, that the maximum price provision, as well as the provision relating to “extras,” have been waived (Stresenrcuter Bros. v. Bowes, 233 Ill. App. 143, 161).

As we have previously indicated it is thus apparent from an examination of the complaint and the contract that no cause of action was stated in count 1 of the complaint. The basic question to be determined, therefore, is whether or not plaintiffs’ amended complaint states a cause of action in count 2 thereof in connection with the allegations relating to waiver.

Under the Illinois Civil Practice Act, a complaint must allege facts stating the cause of action (Illinois Civil Practice Act, section 31 (1), section 42 (2); 1943 Ill. Rev. Stat., ch. 110, secs. 155 and 166 [Jones Ill. Stats. Ann. 104.031, 104.042]), and in determining whether or not the complaint states a cause of action the complaint must be construed most strongly against the plaintiffs, in that a motion to dismiss under such circumstances admits only well pleaded facts, but does not admit conclusions of fact or of law. This principle is illustrated in Marcus v. S. S. Kresge Co., supra, at page 562, where the court pointed out that an allegation to the effect that persons contracting for the erection of buildings, such as the one described in the contract in that case, calling for spread footing foundations, have knowledge that quicksands are not encountered, and that the contract price for the erection of the building is agreed upon without reference to encountering any quicksand in the excavation, were mere conclusions of the pleader and were not admitted by the demurrer.

The obligation of a court, likewise, in construing contracts of the character before us in the instant case, is to discover and give effect to the intention of the parties, according to the terms of the written agreement (Minnesota Lumber Co. v. Whitebreast Goal Co., 160 Ill. 85, 93), and the contract must be construed, in absence of ambiguity, according to its plain and obvious import (Hood v. Community High School List. No. 304, 223 Ill. App. 451). As a consequence we have concluded that the allegations of count 1 of the complaint, which seek to interpret the audit provision as a basis of recovery against the defendant, fails to state a cause of action.

Similarly, in alleging a waiver, it is not sufficient simply to allege that a waiver occurred, but the facts constituting the waiver must be set out, with sufficient detail so that a defendant can be prepared to defend against the claim, and so that the court may determine that if the ultimate facts so set out are proved there would be a basis for waiver, as a matter of law. In Keefer v. United Elec. Coal Companies, 292 Ill. App. 36, at page 52, the court stated: “The appellant insists, further, that the alleged offer to perform on his part and the failure and refusal of the defendant to make the payment upon the offer of tender constituted (without an actual tender) a waiver of further performance by the plaintiff of the conditions to be performed by him under the contract, and that his right of action thereupon accrued. Under the vague and indefinite allegations of fact and conclusions as to what was done by the respective parties and when the alleged transactions or offers took place, we hold that no waiver of lawful tender and continuance of such tender of performance on the part of plaintiff appears on the face of the declaration.”

In the instant case, the allegations of waiver are divided in the second count of the complaint into two sections, the first of which alleges that the waiver was occasioned by defendant demanding the use and employment in the construction of the building of materials other than those required in conformity with the specifications referred to in the contract when such materials could not be used and employed without increasing the cost and fee for the building above $43,475. There is no allegation in conjunction therewith that plaintiffs acceded to such demand, or that there was any substitution of materials in accordance with the demand of defendant.

The other basis upon which plaintiffs predicate their contention of waiver charges that defendant repeatedly, and without reasonable cause, delayed the approval of plans, drawings and materials submitted by plaintiffs and their subcontractors for use in the building and its construction, thereby causing plaintiffs to become liable for and expend sums increasing the cost and fee for the building above $43,475. In connection with this allegation plaintiffs have cited the case of Stresenreuter Bros. v. Bowes, supra. That case, however, is- distinguishable from the instant case. In that case the contractor agreed to build “in accordance with plans and specifications to be prepared” and, “based upon a similar building erected by said owners . . . and known as the St. Clair Building. ’ ’ At the time of the agreement in that case there were no plans and specifications of a building in existence. Early in the course of construction, the contractor told the defendant that the plans and specifications being delivered to him were entirely different from the St. Clair Building, and that the cost of construction would exceed the contract price. The architect and contractor in that case went so far as to prepare a list of the changes and the additional cost to the defendant. There was clearly a waiver in that case.

In the instant case in the contract which was made a part of the complaint, the plaintiffs agreed expressly to construct the building “in conformity with drawings and specifications and addendum made by Holabird & Boot, architects (which drawings consisting of plans, details, sections and elevations and specifications, are signed by the parties hereto and are hereby made a part of this agreement). ...” Apparently all the plaintiffs were required to do under the terms of the contract was to follow such plans and specifications and in the event that their cost equaled or exceeded $43,475, they would be entitled to the amount of $43,475 from defendant. There was no provision whereby plaintiffs were required by the contract to prepare plans and drawings for defendant’s approval, or where, in the contract, defendant was given the right, privilege or duty of approving any material that went into the construction. We must, therefore, conclude that the second count of the amended, complaint fails to state a cause of action in that plaintiffs have failed to allege the necessary facts which would constitute a waiver of the provisions in the contract which limits the amounts to be paid to plaintiffs to the sum of $43,475, of a waiver of the requirement relating to obtaining a written statement signed by the architect and defendant, authorizing additional compensation on the basis of “extras” under the contract. In view of the fact that plaintiffs have received all amounts to which they were entitled under the contract, and in view of the fact that the amended complaint fails to allege a cause of action in either count, as against defendant, on the basis of the allegations contained therein, and the contract incorporated therein by reference, the circuit court properly dismissed plaintiffs’ amended complaint and the order of such court will, therefore, be affirmed.

Affirmed.


author: Mr. Justice Stone

text:
    First National Bank of Jonesboro, Illinois, Appellee, v. Road District No. 8, Union County, Illinois, Appellant. Clear Creek Drainage and Levee District, Union and Alexander Counties, Illinois, et al., Appellees.
    Heard in this court at the May term, 1942.
    Opinion filed February 28, 1944.
    Rehearing denied May 23, 1944.

      Paul D. Reese, of Jonesboro, for appellant.
    R. Wallace Karraker, of Jonesboro, for certain appellees.
    Ford L. Rendleman, of Jonesboro, for certain other appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This is a suit in equity brought by the First National Bank of Jonesboro, Illinois, a corporation, plaintiff appellee against Boad District No. 8, Union County, defendant appellant, and the Clear Creek Drainage and Levee District, Union and Alexander Counties, the Preston Leve.e and Drainage District, Union County, Road District No. 10, Union County, and Road District No. 11, Union County, defendants appellees, to determine what disposition should be made of the sum of $3,521.48 in the First National Bank of Jonesboro, in an account entitled “Road District No. 8, Drainage Fund. ’ ’

In its second amended complaint, plaintiff appellee alleged that the bank was a taxpayer of appellant, Boad District No. 10, that in 1915 and 1916, appellant levied taxes in the respective sums of $2,500 and $1,500, for “ditching to drain roads” and that such sums were duly collected from the taxpayers of appellant, including plaintiff; that at the time these taxes were levied the defendant Drainage Districts and the Miller Pond Drainage District, not being a party hereto, had been organized in the Mississippi Bottoms and that each of such Drainage Districts included within their territories lands at that time within the boundaries of Boad District No. 8; that the Miller Pond Drainage District and each of defendant Drainage Districts had levied assessments against appellant for benefits to some of its roads occasioned by certain drainage improvements in each of such Drainage Districts, which assessments had been confirmed against said Road District No. 8 by the proper court; that it, and said Road District No. 8 had paid all the assessments levied against it by the Miller Pond Drainage District and had partially paid those levied against it by the defendant Drainage Districts, leaving an unpaid balance on such assessments due respectively, to defendant Drainage Districts, which were existing judgments against Road District No. 8; that at the time said moneys were levied and collected the officers of said Road District No. .8 segregated said funds and placed them on deposit in the plaintiff bank on June 9, 1920, in the amount of $2,124.19, in a special fund, entitled “Drainage Fund” that said fund has remained on deposit from thence hitherto until now, except for the addition thereto of the sum of $1,397.29, as interest paid by the bank, so that the total amount in said fund is now $3,521.48, and that at the time of the levy and collection of said taxes, the said Road District No. 8, included within its boundaries all of the lands and territory in Township 12, South, Ranges 2, 3, and 4, West of the 3rd P. M.

Said amended complaint further alleged that in December 1919, the County Board of Union County created Road District No. 10, defendant appellee, and that certain territory was thereby detached from Road District No. 8 and incorporated within the boundaries of said new Road District No. 10; that in March 1920, the County Board of Union County created Road District No. 11, defendant appellee, and that certain territory was thereby detached from said Road District No. 8 and incorporated within the boundaries of said Road District No. 11; that said Road District No. 8, appellant herein has brought a suit at law, in the circuit court of Union county against plaintiff wherein appellant seeks to recover the said sum of $3,521.48, from the plaintiff, and that said appellant proposes to take said funds received from the taxes levied and collected as aforesaid and use the same for the general purposes of appellant as the same is now constituted and refuses to pay any part of the aforesaid drainage assessments, and unless the court intervenes, would divert said funds from the purpose for which levied and use the same in fraud of the rights of the taxpayers and in violation of the law and its trust in regard thereto.

The prayer of the second amended complaint was that a temporary injunction be issued restraining the appellant and its officers from disturbing said funds until the final disposition of the cause; prayed each of the defendant Drainage Districts, Boad Districts 10 and 11 and the appellant be made defendants thereto and required to answer; that an accounting might be had as to the exact amount due from appellant to each of defendant Drainage Districts; that on a final hearing hereof, appellant and its officers be permanently enjoined from using said funds for any purpose except that for which they were levied and collected and that said suit at law be permanently enjoined and dismissed.

There followed a maze of voluminous pleading, which resulted eventually in the parties going to trial, upon the second amended complaint certain counterclaims of Boad District No. 8, and on counterclaims of Boad Districts 10 and 11, said counterclaims being based on judgments obtained by the Drainage Districts against Boad District No. 8.

Upon a hearing by the court, final decree was filed October 21, 1941, which found the allegations of the second amended complaint to be true, fixed the amount due said Clear Creek Drainage and Levee District at $1,828.17 and Preston Levee and Drainage District at $1,395.64 (no penalties being included, as not requested by said districts) Boad District No. 10, $531.39, and Boad District No. 11, $1,002.06, that the total exceeded the amount of the fund in question, that after the payment of court costs the fund be apportioned to these parties. From this decree, appellant prosecuted its appeal to the Supreme Court, thence being transferred to this court.

In a brief of 264 pages appellant alleges 42 errors relied upon for reversal of the finding, orders, judgments and decrees of the trial court, the first 15 of which assignments of error attack the rulings of the court made on questions of law raised by the pleadings.

On November 12, 1941, appellant filed motion for supersedeas without bond, in the trial court, on the grounds that it was a quasi-municipal corporation, to which appellees objected, basing their objection on the ground that such proposed appeal was a personal venture of appellant’s attorney, to which appellant replied, denying such allegation. The court thereupon denied the motion of appellant for supersedeas without bond, which action of the court is one of the many assignments of errors alleged herein. Subsection 3 of section 82, Civil Practice Act; Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.082], provides, that where an appeal is taken by a municipal corporation, the trial of reviewing court, or any judge thereof may without requiring any bond to be given order that the appeal shall operate as a supersedeas. In the case of People ex rel. Dilles v. Board of Education, 283 Ill. App. 378, the court ■said, “When an appeal is prosecuted by a public, municipal, governmental or quasi-public corporation the trial or reviewing court may without requiring any bond to be given order that the appeal shall operate as a supersedeas. . . . It is just as necessary to give notice and have an order entered by the trial court that the appeal shall operate as a supersedeas without requiring any bond to be given as it is to give notice and give and file a bond and have the same approved by an order of the trial court in order that the notice of appeal shall operate as a supersedeas. The word ‘may’ as used in subsection 3 of section 82 of the Civil Practice Act, makes the waiving of a bond discretionary with the court. ’ ’ The allowance or refusal of matters of discretion, lodged by law with trial courts, will not be disturbed by an appellate court unless the record discloses that the exercise of such discretion has been abused. Anderson Transfer Co. v. Fuller, 174 Ill. 221; City of Springfield v. McCarthy, 79 Ill. App. 388; Corbly v. Corbly, 206 Ill. App. 527; McMahan v. Trautvetter, 305 Ill. 395; People ex ret. Kessinger v. Burrell, 308 Ill. 600. We are not inclined to hold that the court abused its discretion in this respect.

The record discloses no further attempt to have bond fixed or to obtain supersedeas. It appears from the statement, in the brief of appellee, that subsequent to the entry of the decree by the trial court, the appellee bank, after demand made by the attorney for road district appellee, made distribution as provided in said decree, filed report thereof, which report was set for hearing and notice given all parties, including attorney for appellant; that on hearing such report was approved and appellee bank discharged. These facts are not denied, but the sufficiency thereof are challenged in the reply brief of appellant.

Where a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved, it will dismiss the appeal or writ of error and will not review the cause merely to decide moot questions or to set a precedent for future decisions, as the duty of judicial tribunals is limited to determining rights of person or of property actually controverted in the particular case before it. National Jockey Club v. Illinois Racing Commission, 364 Ill. 630; Chaitlen v. Kaspar American State Bank, 372 Ill. 83; Wick v. Chicago Tel. Co., 277 Ill. 338; Sobieski v. City of Chicago, 325 Ill. 259; People v. Sweitser, 329 Ill. 380; Wingert v. First Nat. Bank, 223 U. S. 670; People v. Village of Oak Park, 356 Ill. 154; Tuttle v. Gimderson, 341 Ill. 36; Lesher v. Lesher, 250 Ill. 382; State Bank of St. Charles v. Burr, 372 Ill. 114. This is so, even though such facts do not appear in the record. Wick v. Chicago Tel. Co., supra; People v. Sweitser, supra; People v. Village of Oak Park, supra; Jones v. Clark, 355 Ill. 527.

In the case of Draper v. Hoops, 135 Ill. App. 388, the court at page 393, said, “It is urged that the court erred in overruling the motion of plaintiff for continuing the lien of the attachment writ and directing the' sheriff to retain possession of the property levied upon pending appeal, and in argument it is stated that soon after the attachment was quashed, defendant sold the stock of goods. If this be true, the question thus presented is purely academic and should we hold that the court erred in refusing this request it would be idle and useless, because the sheriff could not repossess himself of the property attached. The discussion of a question which is purely academic and not practical will not be indulged by court of appeal, as such courts exist for the disposition of real .questions and not mooted ones. Zaccone v. Halverson, 92 Ill. App. 661; Kelley v. Mass. Mtitual Ins. Co., 46 Ill. App. 460; Loven v. People, 46 Ill. App. 306.”

The main issue involved in the instant suit when it was begun has no longer an existence. The primary purpose of the suit was the distribution of the funds in the hands of the bank. After decree, no supersedeas having been granted, and the trial court therefore retaining jurisdiction, the bank made distribution of such funds, in accordance with the terms of the decree. - It would be an idle ceremony now, for this court, to order distribution of those funds upon any other theory. This leaves merely a question of costs in the case. When there is no real question involving actual interests and rights for a reviewing court to consider, the court should not be compelled to review a case merely for the purpose of determining who ought to pay the costs of the suit. Wick v. Chicago Telephone Co., supra. The appeal will be dismissed.

Appeal dismissed.


text:
    People of the State of Illinois, Appellee, v. James G. Reynolds, Appellant.
    Heard in this court at the February term, 1944.
    Opinion filed February 28, 1944.
    Rehearing denied May 23, 1944.
    W. D. Lyerle, of Jonesboro, and Isaac K. Levy, of Murphysboro, for appellant.
    Russell E. Townsend, of Jonesboro, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

James G-. Reynolds, defendant appellant, hereinafter designated as defendant, was indicted by the “grand jury of Union county upon a charge of having committed an unlawful assault with a deadly weapon on the person of one Michael Van Amburg, with intent then and there to inflict upon the said Michael Van Am-burg a bodily injury, no considerable provocation then and there appearing. This indictment was certified to the county court of Union county, where defendant, waiving trial by jury was tried by the court. Defendant was found guilty, and the court assessed a fine of fifty dollars against Mm, from which judgment, defendant prosecutes his appeal to this court.

It appears from the record, that on the morning of November 4, 1942, at about 10 o’clock, the prosecuting witness, Michael Van Amburg, with an employee, Frank Brown, was unloading a truckload of gravel in a mudhole in a road, near Reynoldsville. Defendant drove up in his truck and when he came to where the Van Amburg truck was parked in the road, he stopped a short distance away, and got out of his truck.

When the prosecuting witness, who at that time was scattering gravel about three feet north of his own truck, saw defendant, he put down his shovel, and walked around his truck toward defendant. At that time, he remarked to the witness Brown, “If we have a fight this is my fight; you stay out of it.” It appears that defendant and the prosecuting witness had been involved in a law suit over the road on wMch this trouble occurred, and that the Supreme Court had decided the case adversely to defendant. Van Amburg testified that when he approached defendant he said, “Good morning, Mr. Reynolds; do you want by?” that defendant cursed him, and pointing a revolver at him, said that he was going to shoot his “son of a bitching guts out,” that the prosecuting witness then said to defendant, “You’re too god-damned yellow,” whereupon defendant hit him on the shoulder and over the head with the barrel of the revolver. Van Amburg claims that defendant continued to beat him over the head with the revolver, that he Mt defendant with his fist, grabbing defendant, and that they then both fell down. As a result Van Amburg testified that he sustained five gashes and had twelve stitches taken by a doctor at Anna. Van Amburg is corroborated in the main by the witness, Frank Brown.

Defendant testified in substance, that he had driven up to the place in the road where the trouble took place, for the purpose of looking at a wheat field, that he did not know that Van Amburg was there, that prosecuting witness approached him with his fist clenched and in a hurry, that the prosecuting witness said to him, “I am on my fifteen feet of the road,” and defendant replied, “That is all right, stay there,” whereupon the prosecuting witness continued to advance toward defendant, cursing him, and as he advanced, defendant picked up a revolver on the seat of 'the truck, and after Van Amburg struck him with his fist, defendant struck him on the head with the revolver. Defendant’s claim was, that he would not have struck Van Amburg if he had not have struck him first, and that he struck him defending himself.

The first error assigned, and the one most strongly relied upon for a reversal of the judgment is that the People wholly failed to prove that the alleged assault was committed in Union county, the venue laid in the indictment. The prosecuting witness, when asked where he was at the time of the trouble, testified that he was in Reynoldsville, on the road running to his farm, and that Eeynoldsville is in Union county in the State of Illinois. The witness Brown testified that at the time in question, he and Van Amburg were working about a fourth of a mile from Eeynoldsville. Proof of venue may be made by circumstantial evidence. It is sufficient if the evidence as a whole leaves no reasonable doubt that the act upon which the indictment is based was committed at the place laid in the indictment. People v. Golub, 333 Ill. 554, citing People v. Talbe, 321 Ill. 80; People v. Ortiz, 320 Ill. 205; People v. Shaw, 300 Ill. 451; People v. Allegretti, 291 Ill. 364; Weinberg v. People, 208 Ill. 15; Porter v. People, 158 Ill. 370.

It-is not necessary that someone testify, in so many words, to the place where the offense was committed, but it is sufficient if the evidence as a whole, leaves no reasonable doubt as to the act upon which the indictment is based having been committed at the place alleged in the indictment. Weinberg v. People, supra; Porter v. People, supra. The venue is proved if there is evidence from which it can be inferred that the crime was committed within the jurisdiction where the prosecution takes place. People v. McIntosh, 242 Ill. 602; Cornshock v. People, 56 Ill. App. 467. Even assuming that there was a question as to whether the offense was committed within the limits of Reynoldsville, or a quarter of a mile outside the limits, the court might take judicial notice of the boundaries of counties, Ross v. Reddick, 2 Ill. (1 Scam.) 73; Burns v. Curran, 282 Ill. 476; Cornshock v. People, supra. We believe that the venue was sufficiently shown.

It is contended on behalf of defendant that the trial court erred in finding defendant guilty for the reason that the evidence failed to prove beyond a reasonable doubt that the assault was committed by defendant with intent to inflict upon the person of the prosecuting witness, a bodily injury. It is not necessary to a conviction in this character of case that an express intention be proved, and it has been uniformly held that the intent may be. inferred from the acts of the person charged as well as by acts or declaration. People v. Yuskauskas, 268 Ill. 328; Dahlberg v. People, 225 Ill. 485; McCoy v. People, 175 Ill. 224; Crosby v. People, 137 Ill. 325. The intent is a question of fact to be determined from the circumstances shown by the evidence. People v. Haios, 175 Ill. App. 296.

It is also contended that the court erred in finding defendant guilty, for the reason that the evidence failed to prove beyond a reasonable doubt that defendant unlawfully made an assault upon the prosecuting witness, with the intent then and there to inflict upon the person of said prosecuting witness a bodily injury, when there was no considerable provocation was a question of fact under all the evidence, Ruble v. People, 67 Ill. 438; Connaghan v. People, 88 Ill. 460. The question of whether or not this revolver, used in the manner shown by the record, was a deadly weapon was also a question of fact. People v. Dwyer, 324 Ill. 363.

Much of the argument of counsel for defendant is devoted to the proposition that defendant was a man 73 years of age, crippled with arthritis in his hand, rheumatism in his shoulder and suffering with prostate trouble, while the prosecuting witness was 43 years of age. The court, acting as a trier of fact, without a jury saw and heard the witnesses and had therefore advantages which an appellate tribunal does not possess in judging of the weight to be given to the testimony of witnesses when there appears to be a conflict therein. City of Quincy v. Kemper, 304 Ill. 303. The court was justified on the record in believing from the testimony of all the witnesses, including the defendant, that he, the defendant did not permit either his age, or his physical infirmities to hamper him in this roadside dispute.

The testimony of the prosecuting witness is to the effect that he was assaulted and struck on the head by defendant, with the barrel of defendant’s revolver, in which he is corroborated in the main by the witness Brown. The statement of defendant that the prosecuting witness struck the first blow, and that he acted in necessary self defense, stands alone and. uncorroborated.

As evidenced by his judgment, the trial court was satisfied beyond a reasonable doubt of the guilt of the defendant, and this court will not substitute its opinion for that of the trial court, who saw and heard the witnesses on the witness stand.

We cannot say, after a careful consideration of all the evidence that the judgment of the trial court was manifestly wrong. We find no reversible error in the record and the judgment of the lower court will be affirmed.

Affirmed.