author: Mr. Presiding Justice Hebel

text:
    Jennie E. Glanz, Appellant, v. E. E. Mueller, Receiver, et al., Appellees.
    Gen. No. 42,142.
    Heard in the third division of this court for the first district at the February term, 1942.
    Opinion filed April 26, 1944.
    Rehearing denied May 12, 1944.
    Jacob Levy, of Chicago, for appellant; Ed McTiernan, of Chicago, of counsel.
    Adamowski, Sallemi & Crowley, of Chicago, for certain appellee; James V. Sallemi, of Chicago, of counsel.
    Schuyler & Hennessy, of Chicago, for certain other appellee; G. Ernest Heaton, of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff involving a complaint in the nature of a bill of review filed by her on August 15, 1941 to review a decree entered on August 23, 1940. Plaintiff had asked that the decree entered on the counterclaim of Charles H. Albers as receiver be reviewed, reversed and set aside, and that plaintiff be permitted to file an answer in the suit and to defend the same.»

On October 15,1941, the chancellor entered an order on the motion of Otto C. Woerter, successor receiver to Charles H. Albers as receiver of the United American Trust & Savings Bank, and of E. E. Mueller, receiver of Home Bank & Trust Company, striking and dismissing the complaint of plaintiff in case 41 C-6975. Plaintiff had sought to have vacated a decree pro confesso which had been entered by Judge Epstein of the circuit court on August 23, 1940 in the case entitled “E. E. Mueller, as Receiver of Home Bank & Trust Company v. Sarah Abram (T 1562) et al., No. 40 C-1163.” Plaintiff had been summoned to appear in this case, as well as other defendants.

The dismissed complaint was drawn on the theory of errors upon the face of the original decree and on the supposition that fraud had been perpetrated1 in procuring the entry of the decree.

On August 23, 194.0 the final decree, which the dismissed complaint in case 41 C-6975 sought to be vacated, was entered in case No. 40 C-1163 after the complaint and counterclaim therein had been taken as confessed against Louis, D. Glanz, Alexander Glanz, Pauline F. Hatterman and Jennie E. Glanz, defendants in the case, the court having heard evidence. This decree was to enforce the lien upon certain stock deposited as collateral and under circumstances which, as set out in the counterclaim were as follows.

On July 31, 1929 Louis D. Glanz, Alexander Glanz and Pauline F. Hatterman were the owners of all of the stock of Hatterman & Glanz State Bank and were also copartners doing business as Hatterman & Glanz. By an agreement dated July 31, 1929 said individuals and said copartnership and Home Bank & Trust Company agreed that Hatterman & Glanz State Bank be consolidated' with Home Bank & Trust Company and that certain assets consisting of collateral loans and notes of Hatterman & Glanz State Bank were not acceptable under said consolidation unless Home Bank & Trust Company was indemnified against loss; that to furnish such indemnity on a percentage basis of 20 per cent and 40 per cent said Louis D. Glanz, Alexander Glanz and Pauline F. Hatterman entered into trust agreements dated August 20, 1929 with Home Bank & Trust Company as trustee designated as trusts Nos. 1427 and 1428. Instead of bank stock, said Louis D. Glanz, Alexander Glanz and Pauline F. Hatterman deposited as collateral security in said trusts Nos. 1427 and 1428, with Home Bank & Trust Company as trustee thereunder, 34 shares of stock issued1 by the Chicago Title & Trust Company with power to sell said stock.

On July 10, 1930 United American Trust & Savings Bank purchased all of the assets of Home Bank & Trust Company, including said loans and notes and said agreements, trusts Nos. 1427 and 1428; on June 14, 1932 United American Trust & Savings Bank closed and the counterclaimant, Charles H. Albers, as receiver of said bank has title to all the said assets thereof, including said’ trust agreements Nos. 1427 and 1428; that $1,300 is unpaid and with 7 per cent interest from June 20, 1932 (over $716) constitutes a loss on the Olsen loan which is of no value, listed in trust No. 1427, and that $1,384 is unpaid, and with 7 per cent interest from June 13,1932 (over $765) consti■tutes a loss on the Dyniewicz note which is of no value, listed in trust No. 1428; that on January 17, 1932 a judgment by confession was entered in favor of United American Trust & Savings Bank against Louis D. G-lanz, Alexander G-lanz and Pauline F. Hatterman for $144,100.50 in the superior court of Cook county, case No. 530335, which judgment was confirmed May 17, 1939, and execution was then ordered to issue; that executions were issued on said judgment and were returned “no property found,” and about a month later on February 26, 1940 said receiver of United American Trust & Savings Bank, garnisheed the Home Bank & Trust Company as trustee under trusts Nos. 1427 and 1428 and E. E. Mueller as receiver and caused1 a summons to be served; that E. E. Mueller, as receiver of Home Bank & Trust Company, filed his answer as garnishee in said case No. 530335 stating that he had in his possession the said 34 shares of stock issued by Chicago Title & Trust Company held under trusts Nos. 1427 and 1428 together with said $115.44 held for the benefit of Louis D. Grlanz under trust No. 1486. ■

The counterclaim, a claim in rem, then avers and prays that said stock certificates and said sum of money should be delivered to said counterclaimant, Charles H. Albers, receiver, as his sole property to be applied upon said, indebtedness of Louis D. G-lanz, Alexander G-lanz and Pauline F. Hatterman to United American Trust & Savings Bank, and that E. E. Mueller, as receiver of Home Bank & Trust Company, should assign to said counter claimant his claim to dividends on said stock and prays that a decree be entered accordingly.

The decree entered August 23, 1940 ordered that E. E. Mueller, as receiver of Home Bank & Trust Company, assign and deliver to Charles H. Albers, as receiver of United American Trust & Savings Bank, the aforesaid certificates for 34 shares of stock issued* by Chicago Title & Trust Company held in trusts Nos. 1427 and 1428 and decreed that E. E. Mueller, as receiver of Home Bank & Trust Company, Louis D. Glanz, Alexander Glanz, Pauline F. Hatterman and Jennie E. Glanz have no interest in said securities. Said decree further ordered that Charles H. Albers, receiver of United American Trust & Savings Bank, credit $3,553, found to be the market value of said securities, on said indebtedness of Louis D. Glanz, Alexander Glanz and Pauline F. Hatterman to United American Trust & Savings Bank, and that E. E. Mueller, as receiver of the Home Bank & Trust Company assign to Charles H. Albers, as receiver of the United American Bank & Trust Company the entire interest of Home Bank & Trust Company, as- trustee under trusts Nos. 1427 and 1428, together with all dividends declared upon the said 34 shares of stock, and that upon so doing said trusts shall be terminated. The decree provided that E. E. Mueller, as such receiver, be allowed a fee of $50 for the services of Home Bank & Trust Company, as trustee under trust No. 1486 from the fund of $115.44 held thereunder for the benefit of Louis D. Glanz as set forth in the answer in said garnishment proceedings, and that the balance of $65.44 be paid to Charles H. Albers as receiver of United American Trust and Savings Bank and credited upon said indebtedness of Louis D. Glanz, and Alexander Glanz and Pauline F. Hatterman to said bank in termination of said trusts.

It is thus apparent that no equity in the deposited collateral remained1 in Jennie E. Glanz.

It is equally apparent that neither the alleged assignments of interest in the collateral nor the alleged transfer by a trustee in bankruptcy to Jennie E. Glanz as related by her would indicate that she has any valuable interest in the collateral.

Plaintiff could have appeared in the case and presented any defense she chose but disregarded the summons issued to her. She acknowledged receipt of the summons but complained that it was indorsed “No personal judgment or decree will be sought against the defendants.” Inasmuch as the counterclaim and1 also the decree were in rem there was no personal judgment sought, and it therefore does not appear that plaintiff sustained any injury thereby nor that any misrepresentation was made or fraud committed. In Austin v. Royal League, 316 Ill. 188 it was said: “In the strict sense of the term, a proceeding in rem is one which is taken directly against property or one which is brought to enforce a right in the thing itself. The distinguishing characteristic of judgments in rem is that they operate directly upon the property and are binding upon all persons in so far as their interest in the property is concerned. Since a judgment in rem operates upon the particular property which is the subject of litigation, it does not have any effect in personam and creates no personal liability.”

Plaintiff has averred that the circuit court had no jurisdiction to entertain the complaint or the counterclaim herein. We find no merit in this contention, for there is nothing in the statute (Ill. Rev. Stat. 1941, ch. 110, pars. 162, 167, 168 [Jones Ill. Stats. Ann. 104.038, 104.043, 104.044]) which would oust the jurisdiction of the court, nor anything which would prevent the filing of the complaint of Mueller, receiver, nor the filing of the counterclaim as a part of the answer of Albers, receiver. No rule of the Supreme Court prevented the joining of issues in this proceeding. (State Banh of St. Charles v. Burr, 372 Ill. 114; Kronan Building & Loan Ass’n v. Medecli, 368 Ill. 118).

Having disregarded the summons issued to her, plaintiff cannot now by a complaint in the nature of a bill of review gain the advantages of an appeal long after the expiration of the time within which she might have sought relief by way of appeal. Such is not the function of a complaint in the nature of a bill of review. (Gray v. First Nat. Bank of Chicago, 294 Ill. App. 62.) Questions of procedure cannot thus be brought for consideration. In Stasél v. American Home Security Corp., 279 Ill. App. 172, the court said: “The question left for us to determine is whether or not, in view of the fact that, after being served with summons, the Stasels failed to enter an appearance and present their undoubted legal defense in the foreclosure suit, they are precluded from asserting their alleged rights by this bill for review. There is no question but that the note and mortgage were forged, and the entire case of defendant is based upon the theory that the complainants failed to exercise due diligence in the foreclosure proceeding, in-that they did not appear and make their defense when served with summons; that having failed in this regard, they cannot now have the relief prayed.” And in Regner v. Hoover, 318 Ill. 169, the Supreme Court said: “Considerable space in the briefs is devoted to the merits of the cause under the original bill. Such considerations have no place in the consideration of this cause . . . An attack on a decree by a bill of review is collateral. . . . The error to be reviewed by a bill of review must be more than the result of a mistaken judgment.”

Thus, though we find that no error was committed in this case, if the plaintiff had desired to allege error involving the merits of the case it could only have been reviewed on direct appeal at the proper time, and not by a bill in the nature of a bill of review.

For the reasons stated heretofore we find that the circuit court properly struck and dismissed the complaint of plaintiff in the case, and its decree should be affirmed.

The decree of the circuit court herein is therefore affirmed.

Decree affirmed.

Burke and Kiley, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Gaylord A. Toft, Appellee, v. Acacia Mausoleum Corporation, Appellant.
    Gen. No. 42,569.
    Heard in the third division of this court for the first district at the February term, 1943.
    Opinion filed April 26, 1944.

      Kamfner & Halligan, of Chicago, for appellant; Edwin A. Halligan and Samuel M. Lanoff, both of Chicago, of counsel.
    Kirby H. Wells, of Chicago, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

On September 1, 1942, judgment by confession for $3,550 was entered in favor of Caylord A. Toft and against Acacia Mausoleum Corporation. On September 14, 1942, defendant filed its motion and petition in support of its limited appearance to vacate the judgment entered by confession. On September 28, 1942, the court denied defendant’s motion to vacate the judgment but granted leave to file an amended petition and affidavit within 5 days. On October 3, 1942, an amended petition to vacate the judgment was filed. On October 21, 1942, a petition and supplemental affidavit to open the judgment and for leave to appear and defend were filed. This motion was denied on October 26,1942 except as to one half of the amount of the judgment. Defendant appeals from these orders.

The petition and affidavits assert that on September 1, 1934 a promissory note payable to the order of Howard L. Doyle and Paul E. Cheney for $2,500 was executed by Acacia Mausoleum Corporation by Street Lightfoot its president; that the note contains a warrant of attorney to confess judgment; that the note was payable September 1, 1935; that the signing, execution and delivery of the note containing the warrant of attorney was not authorized by the board of direc-1 tors nor by the by-laws or certificate of incorporation nor under any law applicable to the corporation; that the defendant is and was since prior to September 1, 1934, engaged in the business of maintaining and operating a burial mausoleum; that the note did not relate to any transaction in the ordinary course of such business; that plaintiff is an attorney and represented defendant as its attorney in the transaction concerning the note, received a fee from defendant for the services rendered by him, acted as its attorney as to other legal matters for a period commencing prior to September 1, 1934 and ending after December 1, 1934; that on September 1, 1934, without the knowledge of defendant, plaintiff represented to Paul E. Cheney, one of the payees, that he, plaintiff, would see that Cheney’s interest in the note was protected if the note was turned over to him (plaintiff), whereupon Cheney turned the note over to the plaintiff; that in November 1934, without the knowledge or consent of defendant, plaintiff paid to Cheney the sum of $1,375, at which time Cheney believed that plaintiff was and had been acting for defendant corporation in connection therewith; that in the year 1935 defendant paid to payee Howard L. Doyle the sum of $1,225; that on August 19, 1942, defendant received a letter from Kirby H. Wells as attorney for plaintiff, which was the first knowledge the defendant had that plaintiff claimed to be a holder and owner of the note; that at no time prior thereto did plaintiff ever orally or by any written communication inform defendant that he had acquired the note; that defendant sustained damages of $1,225 with interest thereon at 5 per cent per annum from the date of payment of that sum to Doyle as a result of plaintiff’s failure to notify defendant that he had acquired the note from Cheney; and that defendant should be permitted to “set off and counterclaim” against plaintiff as to this sum.

Defendant maintains that its petition and affidavit show that its president was not authorized by the bylaws or charter to execute the note confessed upon, and that the court erred in not granting it leave to appear and defend. The petition and affidavits state that Mr. Lightfoot, its president, did not have authority to sign a warrant of attorney to confess judgment. The reasonable inference from the petition and affidavits is that Mr. Lightfoot had authority to execute the note but that he did not have authority to execute the warrant of attorney to confess judgment.

The final motion presented by the defendant was to open up the judgment. Under defendant’s theory the judgment would stand as security until the case presented by its answer was tried and determined. In view of the fact that the motion to vacate the judgment was abandoned, the proposition as to whether Mr. Lightfoot had authority to execute the warrant of attorney became moot. The affidavits and petition filed by defendant show that the execution of the note was ratified by the corporation by its acceptance of the benefits thereof and by making a payment thereon with knowledge of the facts relating to its execution.

The petition to open the judgment contains an allegation that “not later than November 1934, and without the knowledge or consent of Mausoleum Corporation, Toft secretly acquired the note at a very substantial discount; that is, at a cost to him of not over $1,375, and that such acquisition was in violation of Toft’s duty and fiduciary obligation to Mausoleum Corporation as its said attorney, and that, in consequence, Toft holds the note as a trustee for the benefit of Mausoleum Corporation.”

The trust relationship between plaintiff and defendant, relied upon by defendant, was a constructive trust. To exempt a trust from the operation of the statute of limitations it must be a direct trust, belonging exclusively to the jurisdiction of a court of equity. Constructive trusts, arising from partnerships, agencies and the like, are subject to the statute. Lancaster v. Springer, 239 Ill. 472, 482; Herr v. Payson, 157 Ill. 244. Where no fraudulent concealment is alleged, the 5-year statute of limitations runs from the date of the breach of the attorney’s duty, and not from the date the client had notice of such purchase. There is no allegation anywhere in the defendant’s petition or affidavits that the plaintiff fraudulently concealed from the defendant, the fact that he had acquired the note. It is alleged that plaintiff purchased the note in November 1934. The failure of defendant to learn of the purchase of the note does not prevent the operation of .the statute of limitations. Defendant, in effect, is endeavoring to have a constructive trust declared on the theory that when plaintiff purchased the note he did so for its benefit. Defendant states that the statute of limitations was not raised as an issue by the plaintiff in the trial court, and that hence he should be precluded here, and that there is no rule which is more firmly established than that in an action at law the statute of limitations must be. specifically pleaded in the trial or it is waived. On an appeal by the defendant plaintiff is entitled to urge every ground presented by the record which supports the judgment' in his favor. Having obtained all the relief he deemed himself entitled to he may sustain the judgment upon any ground1 warranted by the record, though he may wish to show that the court below erred in not giving it to him on different or additional grounds. People v. Bradford, 372 Ill. 63; Eillmer v. Chicago Banh of Commerce, 375 Ill. 266.

The order entered October 26, 1942, from which defendant prosecutes its appeal, shows that the court considered the petition and the affidavits filed by the defendant and the entire record in the case and that ‘1 after argument of counsel and due deliberation” the motion to open up as to one half of the judgment was denied. It is patent that the court considered the petition, affidavits, the entire record, and the arguments of counsel. The record does not show what arguments were presented by counsel for plaintiff. The presumption is in favor of the judgment entered by the court, and the burden is on the defendant to bring up the full record. Presumably the plaintiff argued the point which he argues in this court. We are of the opinion that plaintiff has a right to argue that the defense sought to be asserted is barred by the 5-year statute of limitations. It is unnecessary to consider the other points urged by defendant.

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

Judgment affirmed.

Burke and Kiley, JJ., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Homer Chatman, Plaintiff in Error.
    Gen. No. 42,682.

      Heard in the third division of this court for the first district at the June term, 1943.
    Opinion filed April 26, 1944.
    B. G. Clanton, of Chicago, for plaintiff in error.
    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.
   Mr. Presiding Justice Hebel

delivered the opinion of the court. ■

An information filed in the municipal court of Chicago charged that on October 2, 1942 Homer Chatman wilfully, wickedly, maliciously and scandalously had in his possession certain lewd, wicked, scandalous, obscene and immoral literature, to the manifest corruption of public morals, in contempt of the People and the law, to the evil example of all persons and the public generally.

Defendant pleaded not guilty and a motion to suppress certain evidence was denied.

Defendant waived trial by jury. In a trial before the court he was found guilty. Motions for a new trial and in arrest of judgment were overruled. "The court entered judgment on the verdict and sentenced the defendant to serve six months in the county jail. He prosecutes this writ of error to reverse the judgment.

William L. Bailey, called as a witness on defendant’s motion to suppress certain evidence, testified that he was a police officer of the city of Chicago; that he placed the defendant under arrest on October 2, 1942 at about 10:00 p. m.; that the defendant was then walking on the street; that he had a radio under his arm; that witness asked him what was under his arm and he said, “a radio”; that he asked him if he had a bill of sale for the radio; that defendant searched his pockets and could not find the bill of sale; that the witness asked him where he got the radio; that defendant answered he purchased it; that defendant told the witness to come over to his house and he would show him the bill of sale; that witness did not have a warrant for the arrest of defendant; that witness “caused him to go back to his home”; that witness had no warrant to search the premises; that when witness and defendant got near to defendant’s house defendant “snatched loose and ran up to the second flight and slammed the door”; that witness rapped and said, “Where is the bill of sale?”; that defendant said, “Just a minute, I will open it, don’t break it down”; defendant opened the door; the witness said, “Where is the bill of sale?”; that defendant said, “Look in that box on top there and you will find the bill of sale”; and that when witness looked in the box he found a package containing obscene literature. This was all the evidence heard on the motion to suppress.

On the trial Officer Bailey testified that at the time defendant was carrying the radio it was wrapped in brown paper. He further testified that when defendant got near to his home he ran, entered his apartment on the second floor and “slammed and locked the door.” Certain exhibits, said to be obscene and immoral literature were seized by the police when they were admitted to the apartment. After defendant entered his apartment it was five or six minutes before he opened the door.

Vincent Bentivenga, a witness for the defendant, testified that defendant had a good reputation for honesty and morality and for'being a law-abiding citizen.

The defendant, testifying in his own behalf, stated that he was a government employee; that he lived in Chicago since 1917; that he had never previously been arrested or charged with any crime; that when the police officer stopped him and asked him about the radio, he stated that it was his, and that he had a bill of sale for it; that while on the street he showed the bill of sale to the police officer; that nevertheless they forced him to go to his home; that they forced him to open the door; that he took his keys out and opened the door; that after he got in he closed it; that the officer kept “hitting on the door and said that if you don’t open it I will shoot”; that while the door was locked and while defendant was inside the officer knocked on the door and said that if defendant did not open it he would break the door; that he then opened1 the door and that the exhibits were obtained by Officer Bailey without permission from defendant.

Michael P. Naughton, a captain of police, called by the People, testified that he told Officer Bailey that he had information that “this man was dealing in obscene literature,” and “to go out into the neighborhood” and find out if he was violating the law and then, if he was, to take him into custody.

It is obvious that Officer Bailey did not have any ground for arresting the defendant while he was walking on the sidewalk. The officer suspected that defendant was guilty of larceny of the radio. He had no reasonable basis for this suspicion. Arrest without warrant on bare suspicion is unlawful.

According to the officer’s testimony he accompanied defendant toward the latter’s home. The defendant broke away and entered his" home, locking the door. The officer knocked, endeavoring to gain admittance. Defendant testified that he refused to admit the officer but finally did so when the officer threatened to break down the door. The exhibits on which the conviction of the defendant is based were obtained by the search made after the entry into defendant’s home.

It is clear to us that the defendant did not freely admit Officer Bailey but that the door was opened only because defendant was coerced. The record clearly shows an unlawful arrest and an unlawful search. The evidence shows clearly that defendant was the owner of the radio and he exhibited a bill of sale showing such ownership to the police officer. The gaining of admission to defendant’s apartment was accomplished through the subterfuge of first arresting him on the pretense that he was guilty of larceny of a radio when in fact the police officer had no reasonable ground for so believing and then of unlawfully entering his dwelling. We find that both the arrest and the search were unlawful. The trial court should have sustained the motion to suppress the evidence so unlawfully obtained.

The judgment of the municipal court of Chicago is reversed.

Judgment reversed.

Burke and Kilby, JJ., concur.


author: Mr. Presiding Justice Hbbel

text:
    Belmont-Central Exchange, Inc., Appellant, v. M. Jacobs, Trading as Ashland-Irving Currency Exchange, Appellee.
    Gen. No. 42,776.

      Heard in the third division of ■this court for the first district at the October term, 1943.
    Opinion filed April 26, 1944.
    C. C. H. Zillman, of Chicago, for appellant.
    John P. Duggan, of Chicago, for appellee.
   Mr. Presiding Justice Hbbel

delivered the opinion of the court.

Belmont-Central Exchange, a corporation, filed its statement of claim in the municipal court against M. Jacobs, doing business as Ashland-Irving Currency Exchange, on a money order or check for $52.25. The trial before the court resulted in a finding and judgment for the defendant. Plaintiff appealed.

Both parties are engaged in Chicago in the business of a currency exchange, which consists in issuing and cashing money orders or checks. Defendant on September 30,1942, drew a money order or check for $52.25 payable to the order of Pvt. Raymond Rybarczyk, on the Milwaukee Avenue National Bank of Chicago. The money order was purchased from defendant by H. Robertson. This instrument, on or about October 10, 1942, bearing on its back in writing the names “Pvt. Raymond Rybarczyk,” and “Jack Thompson,” was presented to plaintiff by a man who identified himself to the cashier as Jack Thompson, one of the purported indorsers. Plaintiff paid him the money called for minus a small charge for the service. Before the money order reached the Milwaukee Avenue National Bank of Chicago, on which it was drawn, defendant notified that bank not to pay it. The bank accordingly refused payment and stamped “payment stopped” on its face and “canceled” on its back, on October 14, 1942, the day the check reached the bank. The amount of the money order remaining unpaid, plaintiff sued defendant, the drawer of the paper. Plaintiff’s statement of claim alleges that the money order was drawn by defendant payable to the order of Pvt. Raymond Rybarczyk, was indorsed by the payee, and thereafter came into the hands of plaintiff as a holder in due course; that payment thereof was stopped by defendant; and that at the time said instrument was negotiated to plaintiff it had no notice of any infirmity in the instrument or of any defect in the title of the person negotiating it to the plaintiff. On the trial the instrument was introduced in evidence on behalf of plaintiff. Plaintiff also called C. H. Collins, a clerk in its employ, who testified that when the instrument was presented for payment it bore the indorsements “Pvt. Raymond Rybarczyk,” and “Jack Thompson”; that the person presenting it identified himself to the witness as the indorsee Jack Thompson; and that at the time he cashed the money order he had no notice of any defect in the title of Jack Thompson or of anyone else. Defendant filed successively three answers. In the first, defendant admitted that he issued the money order and for a valuable consideration; that in pursuance of advice from the purchaser of the instrument, H. Robertson, defendant asked the Milwaukee Avenue 0 National Bank of Chicago, on which the instrument was drawn, to stop payment of it, and that the bank accordingly refused payment. In the second paragraph of the same answer defendant stated that plaintiff did not acquire good title. Defendant in its answer also alleged “that there is nothing in plaintiff’s statement of claim to indicate that the indorsers Raymond Rybarczyk and Jack Thompson indorsed the check.” It will be observed that there is in this answer no denial of plaintiff’s charge that Raymond Rybarczyk, the payee, indorsed the instrument, and that plaintiff’s verified statement of claim contains the positive charge that Rybarczyk, the payee, indorsed the instrument. In its first amended answer defendant affirms that the money order was issued by him in the course of his business as operator of a currency exchange; that he stopped, payment on advice from the purchaser, H. Robertson; that the check was stolen from the mails between an army camp in Georgia and Chicago; that he examined the check; that the signature on the back of the check is not the same as that in an affidavit stated to have been made by the payee; that he is of the belief, after examining the affidavit, that the payee did not sign or authorize any person to sign his name “to the check covered by said affidavit”; that to the best of his knowledge and belief the check was stolen; that none of the indorsements is genuine; that the plaintiff did not take the instrument in good faith for value. There is no positive denial in the amended answer that the payee Rybarczyk indorsed the instrument. In its second amended answer, defendant admits issuing the instrument, states that it is a valid negotiable instrument and subject to the law governing such instruments; that he is “unable positively to deny or affirm that the signature on the check when negotiated for payment is that of Raymond Rybarczyk”; admits that the signature of payee is beyond his actual knowledge, but has reason to believe that the check was not indorsed by Rybarczyk to whom it was made payable; and avers that plaintiff is not a holder in due course and that the burden of proof that plaintiff is a holder in due course is on plaintiff. It will be observed, again, that there is no denial in the second amended answer that the payee indorsed the check as alleged by plaintiff in his statement of claim.

Defendant interposed two defenses, namely, that plaintiff did not acquire title to the instrument in good faith, and that the indorsement of the payee “Pvt. Raymond Rybarczyk,” is a forgery. It is the theory of plaintiff that it is a holder in due course of the money order under authority of section 72 of the Negotiable Instruments Act of Illinois [Jones Ill. Stats. Ann. 89.072]. By section 79 of the same act [Jones Ill. Stats. Ann. 89.079] every holder is deemed prima facie to be a holder in due course until it is shown that the title of the person who negotiated to the holder was defective.

We agree with plaintiff that, in a case where the party sued was already bound before the alleged defective title was acquired, the presumption of holder in due course continues and the burden of proof that the holder is not a holder in due course is on the defendant. Although the case was pending over four months no attempt was made by defendant to procure the deposition of the payee Raymond Rybarczyk who was a private in the army in Georgia or Florida. In the meantime, defendant, according to his answers, obtained two affidavits on the subject. Under section 72 of the Negotiable Instruments Act of Illinois, plaintiff was a holder in due course because (1) the instrument was complete and regular on its face, (2) it became the owner before the instrument was overdue and without notice that it had been previously dishonored, (3) it took it in good faith and for value, (4) at the time it was negotiated1 the plaintiff had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. Defendant became bound on Ms own money order before the name of the payee could have been forged on its back. Section 79 of the Negotiable Instruments Act declares that in certain cases when it has been shown that the title of any negotiant was defective the holder will be required to show that he or some person under whom he claims acquired the title as a holder in due course. The end of section 79 reads, “but the last mentioned rule does not apply in favor o.f a party who became bound on the instrument prior to the acquisition of such defective title.”

The prima facie case of holder in due course remained with .the plaintiff notwithstanding the plea of forgery, and the defendant was required to prove the defense of forgery set up by him by proper and competent evidence. The defendant did not introduce any evidence of forgery. Woodlawn Trust & Savings Bank v. Donaho, 239 Ill. App. 158; Comstock v. Hannah, 76 Ill. 530; Shreeves v. Allen, 79 Ill. 553.

From the defendant’s pleading and from his brief, it appears that the payee actually received the check while in camp near Macon, Georgia, and that he mailed' it back to Chicago. The record is silent as to what happened to the check after it arrived in Chicago. The defendant offered no proof to show the truth of his claim that the indorsement of the payee was a forgery or that the plaintiff’s title was defective.

The judgment of the municipal court is reversed and the cause remanded with directions to enter judgment for the plaintiff and against the defendant for $52.25 and costs.

Reversed and remanded.

■Burke and Kiley, JJ., concur.


author: Mr. Justice Burke

text:
    Howard F. Bishop, Appellee, v. Harley R. Bucklen, Individually and as Trustee Under Last Will and Testament of Herbert E. Bucklen, Deceased, Appellant.
    Gen. No. 42,639.
    Heard in the third division of this court for the first district at the April term, 1943.
    Opinion filed April 26, 1944.
    Rehearing denied May 12, 1944.

      Bell, Boyd & Marshall, of Chicago, for appellant; David A. Watts and Joseph E. Nolan, both of Chicago, of counsel.
    Arthur A. Sullivan and Jerome J. Sladkey, both of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

On December 23, 1937 Howard F. Bishop, a Chicago attorney, filed a complaint at law against Harley R. Bucklen, trustee, to recover damages for an alleged breach of an express contract to pay attorneys’ fees for services in a special assessment proceeding in connection with the contemplated State street subway. Defendant, in due time, filed a jury demand. The pleadings consisted originally of a complaint against the defendant, as trustee, later broadened by an amended complaint, an amendment thereto and a second amended complaint to join as additional parties defendant the other trustees and all the cestuis que trust under the trusts created by the Herbert E. Bucklen will, and to seek recovery against the trust assets as well as against the defendant individually. Defendant first answered. When plaintiff sought a simultaneous recovery against him individually and the trust assets, defendant moved to dismiss, on the grounds that the second amended complaint was multifarious and that plaintiff should elect his remedy. This motion was denied. Defendant answered the second amended complaint, putting in issue the material averments regarding the alleged contract and the breach thereof,- and plaintiff filed his reply denying the affirmative, averments of the answer. The action did not proceed to trial on the law side of the court. Following several amendments to the original complaint, the case was transferred to the chancery side, where further amendments were filed. The case was tried before a chancellor and a decree was entered directing a judgment in favor of plaintiff in the sum of $10,575 against Harley R. Bucklen, individually, and against the assets of the trust estate. Defendant, individually and as trustee, appeals.

Plaintiff’s theory of the case is that he was hired on a contingent basis to defeat the whole assessment; that he did spend a great deal of time in -preparation for the trial and thereafter that the dismissal of the assessment proceeding was due to his objections and his attack upon it; that the subway is now substantially completed without any special assessments and that the defendant has thereby benefited by plaintiff’s efforts and expenditures made in the defeat of the old subway assessment. Defendant’s theory of the case is (a) that the contract of employment was not to defeat the assessment but to reduce it, and consequently no fees could be earned for any “defeat” of the assessment proceedings by the plaintiff even assuming arguendo his efforts had something to do with the ultimate dismissal of the special assessment proceedings; (b) that plaintiff’s efforts in the subway assessment case must, because of the contemporaneous trial of the condemnation case, have been quite limited in character; (c) that even if the contract were to defeat the subway assessment, the plaintiff’s efforts had no causal connection with the dismissal, so no fee was earned; (d) that the plaintiff represented interests in conflict with those of the defendant on either the “reduction” interpretation or the “defeat” interpretation of the contract of employment, in the subway assessment case and1 in the condemnation case, and so is not entitled to compensation; (e) that since the plaintiff, an experienced lawyer, made his contract with two trustees knowing them to be trustees, concerning property which to his knowledge they owned and controlled only as trust property, there was obviously no intention that the trustees should be individually liable and individual liability is improper; and (f) that there is no basis in the record for a decree running simultaneously against the defendant individually and the trust assets.

In 1930 the city council of the city of Chicago passed ordinances designed to settle the Chicago traction problem and at the same time provide the city with rapid transit- subways. The principal ordinance was passed May 19, 1930, providing for a comprehensive unified local transportation system with the elevated and surface lines companies combined in a single ownership. On September 22, 1930 the city council passed an ordinance providing for the widening of North State street, north of the Chicago river along the route of the proposed subway. December 15, 1930 saw the passage of the ordinance levying a special assessment for the construction of a subway in State street from about Roosevelt road to Chicago avenue and for repaving the street. Still a fourth ordinance provided for a bridge at State street over the Chicago river and for certain approaches thereto. The unification ordinance was duly approved at a referendum and the city then proceeded to implement the ordinances by instituting in the superior court of Cook county, early in 1931, a condemnation case for the widening of North State street (City of Chicago v. Johnston, No. 524615, herein called the “Condemnation Case” or the “Widening Case”) covering property from the river along the route of the proposed subway to its north end at Chicago avenue, and thereafter a special assessment proceeding for the construction of the subway itself (In the Matter of the Petition of the City of Chicago for the Confirmation of a Special Assessment to Construct a Subway, etc., No. 2375, herein called the “Subway Assessment Case”) covering property along the entire route of the subway. The ordinance for the widening of State street between the Chicago river and Chicago avenue provided for the taking of about 29 feet on one side of the street and approximately 10 feet on the other side. The plan also contemplated the extension of the subway west in Chicago avenue to approximately Franklin street, where a ramp was to be erected to connect it with the elevated railway system. The General Assembly in 1929 had passed certain enabling legislation relating to traction unification and subways, and during the years 1931 and 1932 these acts were in the process of being ruled upon by the courts in the cases known as “The Bass Case” and the “Quo Warranto Case.” These cases were decided July 26,1932 by the Supreme Court of Illinois and the validity of the legislation upheld. (People v. City of Chicago, 349 Ill. 304.) The defendant Harley R. Bucklen was then cotrustee with Foreman State Trust & Savings Bank, the other cotrustee, of two separate trusts or funds established as alleged in plaintiff’s second amended complaint, under the last will and testament of plaintiff’s father, Herbert E. Bucklen, deceased. Upon the subsequent failure of the hank, defendant continued as sole trustee of one fund designated by the will as Fund C, but the defendant Peter D. Quigley was appointed sole successor trustee as to the other fund (Fund B) on or about July 14, 1933 by virtue of a decree of the circuit court of Cook county. Fund B included a hotel property of five or six stories located at 701-3 South State street, and Fund C included a rooming house property of three or four stories located at 807-9 South State street, both directly on the route of the proposed subway and included within Subway Assessment Case No. 2375.

Early in February 1931 Mr. William C. Miller, one of the trust officers of the Foreman bank, spoke to plaintiff Howard F. Bishop about representing the trustees in the subway assessment case, and as a result of this conversation a meeting for February 4, 1931 was arranged. The meeting was attended by Bishop, Miller and Bueklen, and the only written memoranda made of the conversations were the two letters written the. next day by Mr. Miller to Mr. Bishop. Mr. Bishop and Mr. Miller both testified. Defendant, Mr. Bueklen, was ill with influenza at the time and did not testify. Plaintiff specialized in the type of litigation involved in the widening case and the subway assessment case. According to Mr. Bishop he was engaged by the two trustees, who were known to him to be acting in such capacity to represent the property, which he knew was trust property, in the subway assessment case, to defeat the assessment on a contingent fee basis of 25 per cent. Mr. Miller testified in substance that plaintiff was employed to 'secure a reduction in the subway assessment, not to defeat the subway assessment proceeding, for which he was to be paid 25 per cent of the savings effected. Plaintiff represented a number of clients in the widening case and also in the subway assessment case, which were pending in the superior court and assigned to the same judge. The condemnation case (also called the widening case) to which defendant was not a party, was tried before the late Judge Boss 0. Hall between April 27, 1931 and March 3, 1932. The trial occupied much of the time between those dates and the transcript ran over 11,000 pages in length. Plaintiff was the attorney among those representing defendants who was most active in presenting evidence. Upon the condemnation case going to trial it was announced by the court and understood by the various attorneys that the taking of evidence in the condemnation case would be completed before the subway assessment case would be tried. It was contemplated that the trial of the subway case would1 follow immediately as it had been continued from time to time during the trial of the widening case. The ordinance for the subway was introduced in the widening proceeding and its validity was there attacked'. This was recognized as1 a proper procedure. Plaintiff filed printed and written objections in the widening case, especially prepared by him for that particular case, consisting of approximately 72 pages. He spent 300 days in the trial of the widening case and á large amount of money for witness fees, experts, court reporters, etc. In the condemnation case plaintiff raised many objections going to the validity of the subway ordinance and he testified1 that he put in evidence in that case all the material relating to the objections he filed in the subway case which were identical with the objections filed in the condemnation case. Despite several colloquies between counsel in the condemnation case directed toward some stipulation or other device whereby the same evidence might not be required to be repeated in the subway assessment case, no such arrangement was ever made. Plaintiff’s evidence in the condemnation case consisted of numerous experts on subway construction, soil conditions, traffic densities, real estate' values and other matters. He has disavowed any attempt or desire to charge the defendant with any part of his work in the widening case; but testified that substantially contemporaneously with that trial he spent from 300 to 400 days’ time in getting ready for the subway assessment case. Plaintiff asserts that the evidence introduced in the widening case was of benefit and could be considered as a portion of the subway assessment proceeding. Upon the completion of the evidence in the condemnation case early in March 1932 a small amount of evidence was taken in the subway assessment case by attorneys other than plaintiff. The elevated railrqad, whose rapid transit lines would operate in the subway went into equity receivership on June 28, 1932. The next day Judge Hall, the trial judge in the condemnation case, accepted an appointment to the Appellate Court, stating to counsel that he considered the operation of the subway quite uncertain. In December 1932 an agreement was reached between the city and certain property owners along State street to confer with respect to certain engineering objections, and the city withdrew its motion for trial in the subway assessment case. During the trial of the condemnation case numerous calls of the subway assessment case preliminary to trial were held before Judge Hall, but nothing transpired except numerous continuances pending the termination of the trial of the condemnation case. At the outset' of both the condemnation and the subway assessment cases the city conceded that as a part of its case it had to show a tenant for the subway. Plaintiff’s special objections were filed and his supporting evidence presented in the condemnation case prior to March 1932. Thereafter for two years all the interested parties, the city, the federal court, the security holders of the elevated and surface lines companies, and their committees, all exerted every effort to preserve the plan of reorganization, the consummation of which would have been to secure unification under the 1930 ordinance and a subway via the special assessment route and a tenant for the subway. On March 21, 1934 the mayor stated his views to the city council in a formal letter, accompanied by an opinion from the corporation counsel’s office, recommending that the 1930 ordinance be allowed to lapse. This communication was not received in evidence. On April 3,1934, pursuant to the mayor’s recommendation, the 1930 ordinance expired without having been accepted, and in December 1934 a motion was made by the attorneys representing other defendants to have the subway assessment case dismissed as to their clients. It was this motion and supporting affidavit which provoked the meeting on December 20, 1934 before the committee on local transportation of the city council, which plaintiff attended. At that meeting plaintiff stated that his clients mostly favored the subway improvement by assessment, but that in view of the contrary views of others of his clients and the lack of instructions from all of them, he was unable to take a position regarding dismissal. The motion to dismiss the subway assessment case was reported to the city council in.a letter from the attorney for the board of local improvements. The city council referred the letter to its committee on local transportation, and on July 10, 1935 the city council directed the corporation counsel to dismiss the subway assessment case for the reason that the Chicago Local Transportation Company, the prospective tenant for the proposed State street subway, did not accept its grant. On July 12, 1935 the case was dismissed as to all objectors on motion of an attorney who was not associated with plaintiff. The order of dismissal recited specifically that the reason for the dismissal was the lack of a tenant for the subway. The court at the same time entered an order dismissing’ the case as to those objectors who presented their motion and affidavit. The latter order was excluded by the trial court. The written motion to dismiss was orally joined in by the plaintiff. The reason assigned in the order of dismissal, lack of tenant, was one of the objections raised and alleged by plaintiff. After the subway assessment case was dismissed, plaintiff presented a bill to defendant, as trustee, for “legal services rendered in filing objections to assessments . . . and securing cancellation of same . . . ,” divided as between the two trust funds in the amount of 25 per cent of the original assessment or an aggregate of $10,575.

The first point advanced by defendant is that since plaintiff was employed to reduce the subway assessment rather than to defeat it, he is entitled to no compensation for the dismissal of the proceedings, even assuming that his efforts had something to do with the dismissal. Plaintiff insists that he was employed to defeat the subway assessment, not merely to reduce it. The employment was arranged at a conference between himself and the two trustees, held on February 4, 1931, almost 12 years prior to the trial. Plaintiff testified that he made no memorandum of the conferences, the only writing concerning it being the two letters written by Mr. Miller to plaintiff the next day. Plaintiff testified that he was hired not on a reasonable fee basis, but on a contingent basis of 25 per cent to knock out, or to kill the assessment. Mr. Miller testified: “I asked Mr. Bishop what his charge would be, and he said it would be 33¡ti % of the savings effected. I am quite sure that I had previously discussed the question of fees with Mr. Bishop, and in the course of our conversation, dickered or bargained with him a bit, because of other cases that he had had for us in the past. I had had some previous preliminary discussion with Mr. Bishop and suggested that he ought to do it for less than 33^ % in this instance. Mr. Bucklen has voiced his sentiments along the same line, and we agreed on 25%. That is the substance of the conversation that occurred at that time. . . . That arrangement was confirmed.” Mr. Miller further testified that in discussing the question of fees and the fact that plaintiff’s charge “generally speaking was 33he said to plaintiff: “In view of the fact that you have represented the bank in numerous matters, Michigan avenue and South Water street, and other matters of that sort, I am sure that is about the words I used, that he should give us a special rate in jMs particular case.” On cross-examination Mr. Miller testified: “Whatever percentage we were to pay, of course, was to be based upon the savings in the amount of the assessment.” Witness further testified: “The property at 701 South State street was on the corner and had five or six stories. I don’t remember, but I am inclined to believe that something was said in our conversation about the subway opening being in front of the building. Probably we discussed that.” Asked as to whether anything was said in the preliminary talk to the effect that the trustees wished to employ plaintiff to “knock out the subway assessment,”-he answered: “I have no recollection of any discussion of that nature.” Asked: “Do you recall any conversations prior to the meeting of February 4, to the effect that the trustees wished to employ Mr. Bishop to defeat the subway assessment? I think you might answer that first, yes or no, and then if you wish to explain your answer, that is something else.” He answered: “I can’t answer it yes or no. I can say we employed him, I can do that, but I can’t answer that question yes or no. I am going to say that it was my distinct understanding that we employed Mr. Bishop. I will say that we employed Mr. Bishop to represent us in this matter. We wanted whatever protection we were entitled to receive, depending upon the circumstances, and.he was an expert along these lines and we were faced with these assessments,, and we wanted — -we employed him to protect us in the matter. . . . Nothing that I recall was said at the conference between Mr. Bishop, Mr. Bucklen and myself on February 4, 1931 to the effect that the trustees desired the subway assessment to be completely knocked out.” Asked: “Was there any conversation to the effect that you wished it reduced in amount?”, he answered: “I am very sure that it was our feeling that the_ assessment was limited in its spread and the spread should have been extended materially and taken in a very much wider distribution. ’ ’ He testified that he meant that the property assessed should have been extended geographically further back on either side of the street. Asked: “Was anything said at that conference of February 4, 1931 regarding the possible benefit to the property from the building of the subway?”, he answered: “There was a feeling that property located where there would be subway stations would be somewhat benefited.” Asked: “When you say there was a feeling to that effect, are you describing something that was subjectively in your mind and Mr. Bucklen’s mind, or are you giving a shortened description of part of the conversation of February 4th?” he answered: “I am saying this; that I am quite sure that Mr. Bucklen and the officers of the bank felt or were of the opinion that if a subway station were located at or near the properties that it might be of some benefit.” Asked: “Was that discussed with Mr. Bucklen in the meeting of February 4th?”, he answered: “I am inclined to think it might have been. I don’t know definitely. I can’t remember exactly.” Asked as to whether he recalled anything being said at the meeting of February 4th to the effect that plaintiff would be paid, or that witness would see that he was paid, he answered: “There wasn’t any question about our hiring Mr. Bishop, and when we hire a man we intend to pay him. We did hire him at that time. Of course, we expected to pay him.” On cross-examination, in answer to a question as to whether under the proposed plan subway stations were to be erected under either of the parcels, he answered: “It wasn’t definitely determined at that time. It had not been definitely determined at that time. I don’t think there had been plans prepared at that time. I don’t recall.”

The conversation respecting the terms of employment was held on February 4,1931. On the stationery of the bank, Mr. Miller, signing as vice president, sent two letters to plaintiff, dated February 5, 1931, one of these letters with the heading, “Be: H. E. Bucklen Trust,” reads:

“We handed to you yesterday notice from the Board of Local Improvements affecting property at 807-9 South State Street in the sum of $22,500. This property is about a block south of Seventh Street and may or may not be affected by subway openings. We feel that this is a matter for special consideration in that the building may be materially damaged by the building of the subway and possibly greatly benefited if openings are made at such a point as will be at or near the property. It is our understanding in conversation with you and Mr. Bucklen yesterday, that your service charge, including all court costs, all attorneys’ fees, all fees of real estate experts, and any other items, shall be reasonable depending upon circumstances, the amount of time involved, etc., and in no event to exceed 25% of the savings or reduction of the assessment.”

The other letter, headed “Re: Quigley Trust Under Bucklen Will,” reads:

“We have today delivered notice of the Local Improvement Association re subway to you, affecting property at 701-3 South State Street in the sum of $19,800. We are told that there is to be a subway opening right in front of the building, and if so, the property should be materially benefited and we are handing this case to you because we feel it should have special treatment, being on State Street. Building of the subway may affect the foundation of the property and thereby damage it; if so, we should be properly protected. It is our understanding in conversation with you and Mr. Bucklen yesterday, that your service charge, including all court costs, all attorneys ’ fees, all fees of real estate experts, and any other items, shall be reasonable depending upon circumstances, the amount of time involved, etc., and in no event to exceed 25% of the saving or reduction of the assessment.”

On February 17, 1931 plaintiff wrote Mr. Miller two letters, one with the heading “In re: H. E. Bucklen Trust,” reading:

“Referring to your letter of the 5th inst., in regard to the above entitled matter, I have looked after the objections in this case and will handle the matter in accordance with the terms outlined' in your letter of that date. If the owner has a survey and plans showing the first story and foundations, particularly with reference to whether there are caissons or floating foundations, depth, etc., with the elevation marks, it would he very helpful in preparing the necessary cross petition. P. S. Please advise the correct legal title, in other words, the exact name of the owner.”

The second letter of that date, headed “In re: Quigley Trust Under Buclden Will, ’ ’ reads:

“I do not believe that I have formally acknowledged your letter of February 5th in the above entitled matter. Of course, I have looked after the objections in this case and will look after the matter in accordance with the terms outlined in your letter of February 5th. If the owner has a survey and plans showing the first story and the foundations, particularly with reference to whether there are caissons or floating foundations, depth, etc., with the elevation marks, it would be very helpful in preparing the necessary cross petition. P. S. Will you kindly advise the exact way in which the legal title is held at the present time, in other words, the exact name of the owner.”

Plaintiff testified that he spent a considerable amount of time in the 12th street condemnation case, the Michigan avenue widening case, the Western avenue, Ash-land avenue, South Water street and the various La Salle street improvements. Plaintiff further testified that in the conversation of February 4, 1931, Mr. Miller said: “What points have you in mind in the way of knocking out this assessment entirely?”, and he answered: “Well, I have in mind that this improvement of a subway is what we lawyers call a general improvement, and not a local improvement.” He stated Mr. Miller said': “If that objection is sustained, would that knock out the assessment entirely?”, to which plaintiff answered: “Yes, it would knock out the entire assessment, and the subway also, and Mr. Miller and Mr. Bucklen said: ‘Well, that would be quite satisfactory.’ ” Plaintiff further testified that Mr. Miller said: “Are there any other points that you have in mind that would go to defeating the entire improvement?”, and that plaintiff replied: “Yes, one of our other points, or one of my other points, is that this is a private improvement, and not a public improvement, in that it connects up solely with the Chicago Rapid Transit Company, and it is for the purpose, among other things, of carrying the Rapid Transit service, and carrying freight, that the North Shore Line would use it.” Plaintiff testified further: “Then he asked whether there was any other basic point, and I said: ‘Yes, our position is that there is no tenant for this subway at the present time. There is no use that can be made of it, because there has been a considerable amount of talk about some company that would use it, but so far, that has not reached any definite determination, and there is no means of using the subway.’ These were the basic things. And then he said, what did I propose to do ? And I said, well, we expected to engage real estate men and engineers and go into it in detail for the purpose of determining all of the different points, in connection with the case; and he said: ‘Well, that is exactly what we want to do,’ and he said, ‘Will it receive your personal attention?’ and I said, Yes, I expect to devote practically all of my time to this as long as the case lasts.” Plaintiff states that the testimony of Mr. Miller shows that his recollections were not vivid, while he, plaintiff, testified clearly to the substance of the conversation, and that in view of this testimony, considering the failure of the defendant to testify and considering the admitted lack of clarity in Mr. Miller’s testimony, the chancellor who saw and heard the witnesses and was in the best position to make a finding, had no alternative but to find as he did, that the contract was one to defeat, not to reduce, the assessment. Defendant argues that the contemporaneons letters indicate a clear expectation on both sides of the employment that the subway would go through. In Toppan Co. v. McLaughlin, 120 Fed. 705, the court said (706):

“Where there is such a direct conflict in the oral testimony, documentary evidence, like the correspondence between the parties, becomes of paramount importance. Such evidence, if pertinent, is controlling since it is the best evidence, and in every way more satisfactory and convincing than the recollection of witnesses as to conversations which occurred more than two years before.”

In Kent v. Manchester, 29 Barb. (1ST. T.) 595, Chancellor Bacon used the following language:

“Recollections are sometimes dim, and impressions deceitful and illusory, but the written stands and speaks a uniform language. ’ ’

We agree with defendant that the letters show that the trustees expected the subway to be built, and that they visaged the possibility of great benefits to the trust property from nearby stations. In these letters Mr. Miller was also apprehensive that the actual building of the subway might affect the foundations of the property and thereby damage it and materially damage the buildings. When plaintiff replied to Mr. Miller’s letters he requested a survey and plans showing the first story and the foundations, particularly with reference to whether there were caissons or floating foundations, depth, etc., with the elevation marks, and stated that they would be helpful to him in preparing “the necessary cross petition.” A cross petition would be necessary only if the subway were-built, with consequential damages to the buildings. We agree with defendant’s contention that the concluding paragraph of the letters dated February 5, 1931 that the fees were “in no event to exceed 25 per cent of the savings or reduction of the assessment,” is couched in language indicating that the upper fee is not to be 25 per cent of the entire assessment, as would be the case if plaintiff were being hired to defeat the assessment entirely, but 25 per cent of the amount by which the assessment might be reduced. While plaintiff testified positively as to his recollection of the conversation relative to his employment, his memory of several important facts con-. cerning the conduct of the litigation was faulty. It is interesting to note that in the 12th street, Michigan avenue, Western avenue, South Water street and La Salle street cases that the improvements went through, and that Mr. Miller became acquainted with plaintiff. through the latter’s representation of the bank in the Michigan avenue and South Water street matters, and other cases. In their conversation of February 4, 1931, the plaintiff and Mr. Miller, in all probability, had in mind the results achieved in the Michigan avenue, South Water street and other cases handled by plaintiff. Mr. Irvin Books, who specialized in the same type of litigation as plaintiff, testified that “In those cases where the subway was completely defeated, and the assessment therefore canceled, and the property owner technically saved the entire assessment, consideration was frequently given to the fact that the property owner at the same time did not receive the improvement, and therefore did not receive some benefit which he might have expected had the improvement gone in; and at least in my practice, it was customary to make some adjustment of the one-third fee, having due regard to the whole value of the service rendered, when the improvement was entirely defeated.” Asked: “And isn’t it a fact, Mr. Books, that it was pretty generally the custom in the special assessment field to take care of this possibility of a dismissal or a complete defeat with a much smaller percentage than one-third, it might be three, four or five percent?”, he answered: “No, I would not say it was customary to anticipate that eventuality. Sometimes it was done; and when it was so anticipated, I don’t know of any cases that were as low as three or four percent. I have heard of some that were as low as five percent. In the case of a dismissal of a special assessment case, it might frequently be that the City would start over again with another special assessment proceeding against the same property. If a property owner made the usual 33% % contingent fee arrangement and no different consideration were given in the event of a defeat, if the City brought three cases against him in three successive years, and the 33%% rule were applied, he would pay the whole thing. That is why I stated a while ago that in those cases where there was a defeat or a dismissal of the proceeding, in my practice at least I found that the proper thing to do was to make some adjustment, having due regard to what has been done, and the value of the service rendered.” We find that the evidence does not sustain the chancellor’s finding that plaintiff was employed to defeat the subway assessment, not merely to reduce it. The weight of the evidence establishes that plaintiff was employed to reduce the subway assessment rather than to defeat it. The contract was entirely silent on plaintiff’s compensation in the event of a dismissal. In connection with the same point defendant argues that as plaintiff was employed to reduce the assessment rather than to defeat it, he cannot recover for the dismissal of the subway assessment case, even assuming that he had something to do with causing its dismissal. Plaintiff urges that even though he was employed to reduce the assessment, the defeat of it constitutes a reduction and that in fact the defeat of the assessment was a complete extinction, reducing the assessment to nothing; that the greater includes the lesser, and that he is entitled to his fee regardless of whether the contract be deemed one to reduce or to defeat the assessment. These contentions are not valid. As Mr. Books stated, where the assessment case is defeated, the property owner does not receive the benefit of the improvement. In our opinion the defeat of the assessment case is not comparable to a reduction of the assessment. Plaintiff’s argument overlooks the contemporaneous correspondence.

Plaintiff maintains that even though he had been employed to reduce the assessment, he would still be entitled to a fair and reasonable compensation for the services rendered in that effort up to the time of the dismissal, whereupon (under defendant’s theory) it then would have become impossible to further perform, and that the cases cited by the defendant that the attorney is not entitled to compensation where he fails to perform his contract, are not applicable. Again plaintiff says “no case was cited by the defendant that where performance was interrupted, as claimed by the defendant, then that recovery on quantum meruit is impossible.” We agree with the assertion of defendant that like a party to any other kind of contract, a lawyer must perform according to the terms he has agreed to in order to be entitled to performance by the other side. A lawyer who is employed to carry on or to defend litigation along certain lines cannot recover a fee for work which is not only different from what he was employed to do but is opposed to the results desired by his client. As to the suggestion of plaintiff that in any event he should be allowed recovery upon quantum meruit, plaintiff tried his case on the theory of an express contract rather than quantum meruit. His complaint is also grounded on the theory of an express contract. It is elementary that a complainant in a chancery suit cannot make one case by his bill in the lower court and in a reviewing court be allowed to make another and entirely different one. This court has frequently so declared, and we have also expressly declared that “this court reviews a case presented to the trial court and does not sit to try issues presented for the first time in this court.” (Wollenberger v. Hoover, 346 Ill. 511, 539.)

The second point advanced by defendant is that plaintiff’s efforts were very largely and necessarily spent in connection with the condemnation case, in which defendant was neither a party nor chargeable with plaintiff’s efforts, and consequently contemporaneously could have done only a small amount of work in the subway assessment case. Plaintiff answers that he spent a great deal of time on the subway assessment case alone. The third point urged by defendant is that since the eventual dismissal of the subway assessment case was in no way due to plaintiff’s efforts, he is not entitled to any fee for his services. Plaintiff maintains that the dismissal of the subway assessment case was due chiefly to his efforts. As we have seen, the trial of the widening case extended from April 27, 1931 to March 3, 1932, and occupied much of the time between these dates. In the widening case plaintiff raised the same point in his objections as he did in the subway assessment case, and filed the same specific objections he had filed in the subway case as additional objections in the widening case. He presented a great volume of evidence in support of these objections. The issue in the widening case was directed to the validity of the subway proceeding and practically all of the proceedings in the widening case were directed to the validity of the subway ordinance. However, plaintiff does not seek to charge defendant for work done on the widening case. In the subway assessment case plaintiff filed the usual form of general objections and then additional special and specific objections. He, or an associate, attended various preliminary calls of the assessment case. Plaintiff testified that beginning with the early part of 1931 up to approximately May 1932 he spent at least one legal day on the subway assessment case every single day, or a total of not less than 300 and probably nearer 400 days. He kept no record of his time because he had the matters in the subway case on a contingent basis and there was no point in keeping a record. Defendant suggests that when it is borne in mind that throughout most of this period plaintiff was actively engaged in the trial of the condemnation case, and that he used as his witnesses in that case the same experts he was conferring with outside of court hours, then plaintiff’s story becomes a sheer impossibility. Defendant states that no lawyer as expert in special assessment and condemnation cases as plaintiff would try his case through 11,000 pages of testimony without thoroughly preparing that particular case day by day as it progressed and without extensive collaboration with his numerous expert witnesses with .regard to their testimony and the presentation thereof in that particular case. It is unnecessary for us to decide whether the proof establishes that plaintiff spent between 300 and 400 days on the subway assessment case.

We turn to a consideration of defendant’s.argument that to earn his fee plaintiffs efforts must have resulted in the dismissal of the subway assessment case and that the dismissal of that case was in no way due to plaintiff’s efforts. Paragraph 4 of the second amended complaint alleges that “pursuant to said employment plaintiff entered the appearance of said defendant and said parcels in said proceedings and filed objections to said assessment petition and entered upon the trial of the same and spent approximately 400 days in court in the trial thereof, where approximately 11,000 pages of testimony were taken, and that plaintiff paid large sums of money for costs, court reporter, transcript of testimony, experts’ fees, and other sums, and that as a result of efforts of plaintiff that the said special assessment petition was dismissed on or about July 15, 1935.” Defendant answered this allegation by denying that as a result of plaintiff’s efforts the special assessment petition was dismissed on or about July 15,1935, and averred that the special assessment petition was dismissed because “the City of Chicago refrained from prosecuting the same owing to the failure of any traction company to accept the traction ordinance passed by the City Council of Chicago for the use of the proposed subway,” and that “upon the failure of the City of Chicago to prosecute said special assessment proceeding the court dismissed the proceeding upon the motion of one Mr. W. T. Hapeman, attorney for certain objectors therein.” Defendant urges that assuming, arguendo, that plaintiff was employed to defeat rather than to reduce the assessment, he has failed to make such proof. Plaintiff re-, lies upon an express contract of employment. The reason for the dismissal of the special assessment case was clearly stated in a letter dated December 12, 1934 from the attorney for the board of local improvements to the city council, reading, in part, as follows: “Gfentlemen: Yesterday we were served with notice by attorneys representing the majority group of the assessees in the State street subway case, which group is known as the 'Property Owners Committee on Subway Assessments’ that on December 18, 1934 they will appear before the honorable James J. Kelly, judge of the Superior Court of Cook County and move the court to dismiss the case known as special assessment case number 2375. . . . When the subway case went to trial in 1931 it was necessary for the city to prove among other things that it had a tenant for the subway before a judgment of confirmation could be entered. To establish this point the city offered in evidence the 'Comprehensive Traction Ordinance’ and promised to supplement this offer with proof of its acceptance by the Chicago Local Transportation Company. The company having failed to accept the ordinance within the time prescribed and the 'Comprehensive Traction Ordinance’ having terminated, the city has been unable to present a case to the court which would warrant a final judgment. . . . Until a new ordinance is adopted providing’ a tenant for the subway the case cannot be maintained. Unless it is the intention of your honorable body to take up at an early date the matter of tenancy, use and occupation of said proposed subway we will be unable successfully to oppose said motion to dismiss the suit.”

The special assessment case was dismissed as to all defendants on July 12, 1935, by an order, reading:

“This cause coming on to be heard on the legal objections heretofore filed by W. T. Hapeman, attorney for certain objectors, and it appearing to the Court that ‘An Ordinance providing for a comprehensive unified local transportation system • for the City of Chicago and metropolitan area, ’ passed by the City Council of the City of Chicago on May 19, 1930, has never been accepted by any transportation company, and that the ordinance by reason of the failure of acceptance lapsed on April 3, A. D. 1934, after several extensions of time allowed by the City Council of the City of Chicago. It is therefore ordered, adjudged and decreed that the legal objections heretofore filed by W. T. Hapeman to the petition in the above entitled cause, be and the same are hereby sustained and the petition dismissed as to all defendants.”

It will be noted from the recitals of the order that the dismissal was neither on plaintiff’s motion nor on his objections.

To give the chancellor the complete background of the colloquies before the superior court in the subway assessment case, and to explain fully the communication of the attorney for the board of local improvements to the city council and the part played by plaintiff in the actual dismissal of the case, defendant offered in defense the motion of 19 attorneys to dismiss the case, together with the supporting affidavit of Graham Aldis. The proffered exhibits were excluded by the court. In our opinion they were material and pertinent and should have been admitted. They show what Judge Kelly had before him at the time he entered the order of dismissal. The affidavit of Mr. Aldis reads, in part, as follows:

“On March 12, 1931, in case Number 2375, the City of Chicago offered in evidence, as part of its case, the above mentioned Comprehensive Traction Ordinance and promised later to supplement the offer by proof of its acceptance by Chicago Local Transportation Company. On April 3, 1934 the Comprehensive Traction Ordinance expired and became null and void because it never was accepted by Chicago Local Transportation Company within the time limit fixed by the City Council. Affiant is advised that this Special Assessment Case Number 2375 cannot now proceed to trial in view of the fact as above stated that said Comprehensive Traction Ordinance is no longer in existence. The only purpose for which case Number 2375 can be retained for trial is to confirm special assessments for the purpose of constructing the identical subway described in the Subway Ordinance. Nevertheless, the Subway Ordinance is technically still in force and effect and this case Number 2375 has been pending without trial for almost four years and the assessments spread against more than 2,000 pieces of real estate thus remain of récord, thereby clouding the titles and constituting a threat of further proceedings against the owners thereof. Immediately after case Number 2375 was filed, a considerable number of the owners of properties thereby made contingently liable for special assessment taxation, established contingent reserves in their books of account and until case Number 2375 is disposed of said owners are advised by their auditors and it is improper to release said contingent reserve accounts. Since the time when the cost of the construction of the proposed subway was estimated and said assessment roll was spread great changes have taken place in such costs of construction and great changes have taken place in the value of the real estate that was assessed. Affiant is also informed and believes and therefore states that the City of Chicago would not be able to pay and will not for many years be able to pay any substantial amounts for public benefits or for the construction of the proposed tunnel under the Chicago River, either out of the Traction Fund or otherwise.”

The motion by the 19 attorneys representing objectors, erroneously excluded, reads:

“Now come the objectors, whose names are set down in the schedule of the lands attached to the objections to assessments, represented in the proceeding by Messrs. Wilson & Mcllvaine and Scott, MacLeish & Falk as their attorneys, and also all other attorneys for objectors listed in an ‘ Order for Separate Hearing’ entered herein on February 15, 1932, and move the court that an order be entered dismissing this proceeding without costs to any objector. In support of this motion, the objectors append hereto - the affidavit of Graham Aldis.”

The order entered by Judge Kelly on July 12, 1935 and erroneously excluded, reads:

“This cause comes on to be heard on the 12th day of July, A. D. 1935, upon the motion of objectors, represented by Wilson & Mcllvaine, Scott, MacLeish & Falk, and their associated counsel, to dismiss this cause, which said motion was entered herein on December 8,1934, and continued by order of court thereafter from time to time until this date. And, upon consideration of said motion it is hereby ordered by the court that said motion be, and the same hereby is, granted, and this cause is now dismissed as to said objectors.”

The chancellor also excluded Mayor Kelly’s letter to the city council, dated March 21, 1934. The chief condition precedent to the entire 1930 traction program was the acceptance of the main ordinance by a unified local transportation company. In an endeavor to make this possible, the city council from time to time extended the date for the acceptance of the ordinance until April 3, 1934. On March 21, 1934 the city council met and the question of another extension was up for consideration. At this time the mayor submitted a letter addressed to the city council and accompanied by an opinion by the corporation counsel’s office as to whether it would be possible to amend the traction ordinance without submitting such amendments to referendum. In this letter and opinion no mention is made of the points raised by plaintiff. The letter from the mayor in part, reads: '

“As early as September, 1933 the traction interests were notified by the chairman of the local transportation committee and the mayor that the ordinance should be accepted or rejected without further delay. Despite the efforts of the committee on local transportation, of Mr. Walter L. Fisher and of the Honorable James H. Wilkerson, United States district judge, the security holders of the surface lines and elevated railroads failed to effect a reorganization of the transportation systems so that the ordinance could be accepted by the Chicago Local Transportation Company. In the meantime transportation service has greatly deteriorated. A careful analysis of the comprehensive traction ordinance of 1930 has convinced me that it does not meet the present needs of the city. There has been such a radical change in the economic condition of our city and nation since the provisions of that ordinance were formulated that many of the benefits which the city and the people had hoped would result from its immediate acceptance cannot possibly be realized. It is my recommendation that the ordinance extending the time for the acceptance of the comprehensive traction ordinance of 1930 should not be passed.”

This was an official communication from the mayor to the city council. It was material and pertinent to the issue before the chancellor and should have been received. The journal of the proceedings of the city council of March 21,1934, pages 1830 to 1835, show the communication of the mayor, the opinion of the corporation counsel, and that the following motion was adopted:

“At the request of Alderman Bowler unanimous consent was thereupon given for consideration of the report of the Committee on Local Transportation in the matter of an extension of time to and including May 3, 1934, for acceptance by the Chicago Local Transportation Company of an ordinance passed May 19, 1930, providing for a comprehensive unified local transportation system for the City of Chicago and metropolitan area, and in the matter of consenting to further day-to-day unified operation of street railways to and including May 3, 1934, which report was deferred and published March 14, 1934, page 1655. Alderman Bowler moved that the ordinances recommended in said report [printed in Pamphlet No. 55] be placed on file.”

The transcript of the hearing of July 12,1935, at which the special assessment case was dismissed, is in evidence, and in that entire hearing of over six pages of transcript in which first Mr. Cooper (one of the 19 attorneys) and then Mr. Hapeman were discussing and moving for the dismissal of the proceedings, plaintiff contributed the following: “I am prepared to make a motion or join in the motion.” The case, however, was dismissed on Mr. Hapeman’s motion. The order of dismissal states the ground, namely, failure of the transportation company to accept the 1930 ordinance. Plaintiff urges that the findings of fact of the chancellor must be sustained unless manifestly against the weight of the evidence, and that the chancellor’s findings were eminently proper and not manifestly against the weight of the evidence. Plaintiff also states that if his efforts did result in or contribute to the dismissal, defendant’s whole argument under this point falls and becomes inapplicable because his argument is predicated on the assumption that plaintiff’s efforts did not contribute to the dismissal. Plaintiff also points out, and we accept his statement, that in a special assessment proceeding the filing of objections constitutes a motion to dismiss the proceeding as to the parcels represented, but contrary to the practice in a common-law action, where that question is determined entirely upon the pleadings, in the special assessment proceeding evidence is admissible in support of the motion and objections. Plaintiff declares that all of the evidence introduced by him was in support of the many and substantial objections which had been filed by him; that the introduction of testimony in support of objections is common practice and is invariably necessary for the determination of the questions involved; that it is apparent that the assessment was dismissed as to defendant’s property, because of the objections filed by him (plaintiff) and more especially because of the introduction by him of a vast amount of pertinent evidence in support of the objections, and in the attack upon the validity of the assessment as to property involved here. It is true that plaintiff in his ‘ ‘ additional special and specific objections” filed in the subway assessment case, raised the point that the ordinance providing for the operation of transit facilities in the tunnel had not been accepted. The city took a like position from the outset of both proceedings. There was no dispute on this point. The letter from the attorney for the board of local improvements to the city council dated December 12, 1934, recognized that when “the subway case went to trial in 1931 it was necessary for the city to prove among other things that it had a tenant for the subway before a judgment of confirmation could be entered,” and that “to establish this point the city offered in evidence the ‘comprehensive traction ordinance’ and promised to supplement this offer with proof of its acceptance by the Chicago Local Transportation Company.” On April 23, 1931 Mr. Greorge Mason, one of the city’s attorneys in the widening case, stated to the court: “Whether your Honor will enter a'judgment in this case depends upon our being able, later on, to offer your Honor a complete, effective franchise ordinance, so there will be a tenant for a part of the subway structure. There is nothing new about that, the Supreme Court has approved the practice repeatedly in allowing the petitioner, if necessary, to take time to bring in the necessary collateral ordinances. There is no question about that.” We agree with defendant that the record of actual events demonstrated completely how entirely disconnected the ultimate dismissal was from anything the plaintiff did in the assessment case, or even in the condemnation or widening case. The evidence was completed in the widening case about March 3, 1932. By that time the city, as plaintiff’s opponent, had the • benefit of all his objections and all the evidence he had taken under them in the widening ca^e. Nevertheless, it is undisputed that for the next two years the city, the federal court where the lines were in receivership, the security holders and their committees all exerted every effort to bring about a consummation of the comprehensive unified local transportation system plan, including a subway by special assessment under the special assessment ordinance. As a matter of fact, by December 1934 a majority of plaintiff’s clients were in" favor of the subway going through by the special assessment route. Their efforts were blocked, not by plaintiff, but by the failure to procure a tenant, the depression and the resulting nonfeasibility of the entire plan. We are satisfied that the dismissal of the subway assessment, case was in no way due to plaintiff’s efforts and that the finding in favor of plaintiff on this phase of the case is contrary to the manifest weight of the evidence.

Plaintiff asserts that assuming for the purpose of argument that his efforts did not result in the dismissal or contribute thereto, nevertheless, he, having performed considerable service and incurred considerable expense, would be entitled to Ms compensation because the result sought was attained; or he would be entitled to fair and reasonable compensation for services rendered1 even though he did not contribute to the accomplishment of the object; that the record clearly shows that he not only was a contributing cause, but that he was actually the sole cause, and that even though he was not a contributing cause he would be entitled to either fee fixed by the contract, or fair and reasonable fees for services rendered; and that upon either theory, the judgment is proper. We have heretofore stated under another point that plaintiff tried his case on the theory that he had an express contract, and that as a result of his services the proceedings were dismissed. It is a well-settled rule of law that a person cannot try a case on one theory in the trial court and on another theory in a court of review. Lewy v. Standard Plunger Elevator Co., 296 Ill. 295, 304.

Other points urged by defendant are that any claim plaintiff might otherwise have to a fee is rendered invalid by his ' representation of conflicting interests; that if plaintiff has any claim, it should run only against the separate trust funds, not against the defendant personally; and that plaintiff cannot, on this record, have a judgment running simultaneously against the defendant personally and also against the assets of the trust. As the propositions we have ruled on dispose of the case, we will not extend this opinion by a discussion of the remaining points. For the reasons stated, the decree of the circuit court of Cook county entering a judgment against defendant is reversed and the cause remanded with directions to dismiss the second amended complaint for want of equity at plaintiff’s costs.

Reversed and remanded with directions.

Kilby, J. concurs.

Hebel, P. J., took no part.