text:
    Village of Dolton, Appellant, v. James Harms, Jr. et al., Appellees.
    Gen. No. 43,308.

      Heard in the second division of this court for the first district at the February term, 1945.
    Opinion filed November 6, 1945.
    Released for publication November 20, 1945.
    Harold L. Summerfield, of Chicago, for appellant.

      Adcock, Fink & Day, of Chicago, for certain appellee; Edmund D. Ancock and John W. Day, both of Chicago, of counsel.
    Otto F. Reich, P. A. Rattray, both of Chicago, and Burton Evans, of Harvey, for certain other appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff states that “this is an action in equity for a recovery by the plaintiff against the defendant treasurer and the sureties on his official bonds in the sum of One Hundred Fifty Thousand Dollars, and for an accounting to determine the amount of recovery to be allowed on the said bonds.” Defendant Garrett Jacobsma and defendant John S. Van Deursen, who appear in the title of the case as appellees, were not served with process and neither entered his appearance. Defendant John Harms, Sr., died December 20, 1944.

After plaintiff had filed its amended complaint, defendants John Harms, Sr., John Harms, Jr., Horace Holmes and Aetna Casualty and Surety Company filed a written motion praying that the amended complaint be stricken and the suit dismissed. Many grounds were urged in support of the motion. The trial court entered an order sustaining the motion “on the sole ground that the above entitled cause is barred by the five year Statute of Limitations of Illinois.” Plaintiff elected to stand upon its amended complaint and declined to plead further, and the cause was thereupon dismissed. Plaintiff appeals.

The amended complaint alleges that plaintiff is a municipal corporation, located in Cook county; that Garrett Jacobsma was Treasurer of plaintiff Village starting on May 1, 1928, and that he performed the duties of the office until May 1,1929; that John Harms, Jr., was duly appointed as Treasurer of plaintiff Village on April 24, 1929, and qualified; that The Aetna Casualty and Surety Company was surety upon the bond filed by him; that on May 1, 1930, said Harms was reappointed as Village Treasurer and filed a renewal certificate, executed by said Surety Company, which continued the said bond until April 30, 1931; that on May 1, 1931, said Harms was reappointed as Treasurer of the plaintiff Village for one year commencing May 1,1931, and filed a bond in the penal sum of $150,000 with said Surety Company as surety; that on December 15, 1{531, Harms, Jr., as principal, and John Harms, Sr., John S. Van Deursen and Horace Holmes executed a surety bond in the sum of $60,000; that numerous special assessment proceedings were confirmed on behalf of plaintiff Village during the term of office of the Treasurers hereinabove named, warrants were issued for the collection of the assessments, and substantial amounts of money were collected pursuant thereto and came into the hands of the Village Treasurers heretofore named; that funds collected in connection with the special assessment proceedings by the Village Collector of plaintiff Village, and by tile County Collector of the County of Cook, and by them remitted to the Village Treasurers of plaintiff Village herein-above named, were funds collected solely for the purpose of paying the bonds and vouchers issued to defray the cost of construction of the improvements confirmed in the special assessment proceedings and could be used for no other purpose whatsoever, and constituted trust funds to be used only for the purpose of retiring pro rata bonds issued in the respective installments of the respective special assessment proceedings in connection with which the moneys were remitted to the Village Treasurers; that the handling and disbursement of said special assessment funds according to law was one of the duties and obligations of the Treasurer of plaintiff Village in office during the period the various funds were received from time to time; that said Village provided adequate and proper books and records for use concerning special assessment funds and in compliance with the law; that said Village had regularly caused to be made audits of the collections and disbursements of the Village Treasurers for the purpose of determining the amount of funds still on hand applicable to the respective special assessment and the installments thereof; that commencing with the year 1936, claims were made against said Village because of the fact that said special assessment funds had not been properly disbursed by the Village Treasurers in office from time to time, and said Village was made party defendant in several cases that arose as the result of the method of handling special assessment funds by the Village Treasurers hereinabove named; that several of the cases have gone to final decree and the municipality was held liable for substantial sums of money; that numerous other claims have been made against said Village for payment out of general corporate funds of substantial sums of money because of the method of handling special assessment funds by the treasurers heretofore named, said treasurers having diverted collections made on account of special assessments from principal to interest, from one installment to another installment in the same special assessment, and having failed to prorate collections proportionately as between holders and owners of bonds in the same installment of various special assessments, which acts were the acts of the Village Treasurers of said Village, and contrary to their duties as treasurers; that as a result of the filing of said proceedings and the claims thereunder, plaintiff: ordered an analysis prepared by a firm of certified public accountants to determine in what respects the Village Treasurers of said Village hereinabove named had failed to prorate collections, as provided by law; the summary of said analysis showing the payments by the Village Treasurers on account of bonds and interest coupons in excess of the moneys received by the said Treasurers properly applicable thereto, thereby paying out more money than there was in the respective installment, or by failing to prorate the moneys equally among bondholders entitled thereto because of giving a preference to some bondholders over others, is made a part hereof, as Exhibit E; that said Village had no knowledge of the said wrongful acts of the Village Treasurers prior to the preparation of said analysis, and ordered by the municipality after the institution of the first proceedings in the year 1936; that the Village does not know what the total amount of liability on behalf of the Village is because of the acts of said Treasurers which were contrary to law, and that said liability can only be determined after an audit has been made subject to the supervision.and direction of a court of chancery of all of the special assessment records of said Village from May 1, 1928, up. to and including April 30,1932; that no claim on behalf of the municipality is made that said Treasurers received any of the money personally; nor is any claim made in connection with the handling of any funds except the special assessment funds which constituted trust funds which can only be used for a specific purpose as provided by law. Plaintiff prayed that an accounting may be taken of all special assessment moneys turned over to said Village Treasurers; that'it may be determined whether or not any funds were illegally and improperly paid out by said Treasurers; that defendants herein may be adjudged and decreed to pay to plaintiff what if anything appears to be due from them or any of them; that plaintiff may have such other and further relief as equity shall require and which to the court shall seem meet. Attached to the amended complaint as exhibits were copies of the several bonds referred to in the complaint.

Plaintiff’s contention that in determining this appeal we can consider but one question, viz., whether the trial court was justified in holding that the action was barred because of the five year Statute of Limitations, is without merit. Defendants have the right to sustain the judgment upon any ground warranted by the record irrespective of whether the particular reasons given by the trial judge or his specific findings are correct. (Bullman v. Cooper, 362 Ill. 469, 472; Hillmer v. Chicago Bank of Commerce, 375 Ill. 266, 272.)

At the outset, it must be noted that the amended complaint does not charge that any of the alleged diversions were wilful or that the Treasurers converted any funds to their own use. Indeed, the complaint specifically disavows any claim of malfeasance on the part of the Treasurers. During the entire period involved in the instant suit (May 1,1929, to May 1,1932) Section 43 of the Local Improvement Act as amended in 1927 (1929 Cahill Ill. Rev. Stat., Chap. 24, Par. 169) was upon the statute books. It read as-follows:

“Sec. 43. Whenever sufficient funds are on hand for that purpose the treasurer of the municipality shall select by lot bonds of series, to such amount, to be paid therewith and shall send notice by registered mail to the address of the original purchaser (or known present or subsequent owner) of each of such bonds, as set out in the treasurer’s records; stating that the designated bonds will be paid thirty (30) days thereafter at his office and the treasurer also shall give notice in some newspaper published in such municipality (or if none be so published, then in some newspaper published in the county in which such municipality is situated),' of the number of bonds to be so paid, the series thereof, the assessment to. which they relate, and the particular bonds so selected to be paid, and that the same will be paid, at said time and place to be specified. And thereupon, from and after such specified date of payment, said bonds shall be payable at the place so appointed, on demand, and no further interest shall accrue thereon. The mailing and publishing of notice may be ommitted [omitted] if the bonds called for payment are presented for payment.” (Session Laws of 1927, page 253.)

In Rothschild v. Village of Calumet Park, 350 Ill. 330 (opinion filed October 22, 1932; rehearing denied December 7,1932), it was held that Section 43 as amended was nncoiistitutional, upon the ground that the Amendatory Act of 1927 amending certain sections of the Local Improvement Act failed to include Section 43 in its title, and that the attempted amendment of Section 43 was of no effect and the Section as it existed prior to the attempted amendment remained in force. During the' period involved in the instant suit certain ordinances of the Village of Dolton that pertained to the Village Treasurer provided: “Section 2. (Receive All Moneys.) The Treasurer shall receive all moneys belonging to the Village and shall render at the end of each and every month, and oftener, if required, a statement under oath, to the Board of Trustees, showing the state of the treasury at the date of such account, and the balance of the money in the treasury; said statement shall set forth all the moneys received by him, from whom, and on what account they shall have been received; also all moneys paid out by him, and on what account they shall have been paid.” “Section 3 provided for the treasurer keeping books of account showing the various accounts and the moneys paid out and in such manner ‘as to be readily understood and investigated.’ Section 4 provided for the books being kept on a double entry basis showing ‘a full detailed account with all village funds, general tax receipts, and receipts from other sources, also a bond account, sinking fund account and forfeit account in the Village Ledger. He shall keep a “Special Fund” Ledger in which all special funds and installments of special funds shall be kept separately by numbers and names of the special funds, showing the total amount of each fund and installment of same to be collected and each account to show the total collections and disbursements on account of same; payments by warrants only to be charged against said accounts. ’ ” As there is no allegation in the amended complaint that the Treasurers did not perform their duties as required by the Village ordinances, it will be presumed that they did perform said duties. Furthermore, the amended complaint alleges that “the Village . . . regularly caused to be made audits of the collections and disbursements of the Village Treasurers for the purpose of determining the amount of funds still on hand applicable to the respective special assessment and the installments thereof.”

Plaintiff contends: I. “The plaintiff’s suit on the official bond of its former treasurer is not barred by the Five Year Statute of Limitations.” II. “The plaintiff’s suit is not barred by the Five Year Statute of Limitations as Special Assessment Funds are trust funds, both in the hands of the Village and of the Treasurer thereof.” Plaintiff admits that the instant suit was filed more than five years after the term of office of John Harms, Jr., ended, but contends that the suit is based upon the bond furnished by the Treasurer and therefore Section 17 of the Limitations Act governs. That Section (Ill. Rev. Stat. 1945, ch. 83, par. 17, sec. 16 [Jones Ill. Stats. Ann. 107.276]) provides that “Actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within ten years next after the cause of action accrued; . . .” People for use of Stubblefield v. Wochner, 244 Ill. App. 30, was an action against a sheriff and sureties upon his official bond, for damages alleged to have been occasioned through the wrongful seizure of certain property of the plaintiff. The defense of the five year Statute of Limitations was made by special plea. The plaintiff, contending that the ten year statute controlled, demurred to the special plea, which demurrer was overruled," and plaintiff electing to stand on his demurrer judgment was entered for defendants. On appeal the plaintiff contended that the ten year Statute of Limitations applied, as the action was based upon a written instrument. The Appellate court stated (pp. 34, 35, 36):

“It is contended by appellees that if the action were against the sheriff alone to recover damages for the taking of the note, the 5-year statute would bar the action. Carr v. Barnett, 21 Ill. App. 137; Pennsylvania Co. v. Chicago, M. & St. P. Ry. Co., 144 Ill. 197. As far as the officer himself is concerned, his official bond does not extend the obligation imposed on him by law and he is obligated faithfully to perform his official duties just as effectually without signing any bond, unless by force of constitutional or legislative provision. Since the officer is already bound by law to perform the duties pertaining to his office, the bond is in effect merely a collateral to his official duties. 22 R. C. L. 497; Walton v. United States, 9 Wheat. (U. S.) 651; People v. Putnam, 52 Col. 517, 122 Pac. 796.

“Numerous cases are cited by appellee as to the law in other States upon this question, and it is held: In actions against public officers on their official bonds it has been said that, ‘While it is true this is an action against a bond, it is not an action on a written contract, as the basis of the action is the wrongful and illegal act of the principal upon which the liability of the surety is' dependent. ’ Hillyard ex rel. Tanner v. Carabin, 96 Wash. 366,165 Pac. 381; Board of Com’rs of Graham Co. v. Van Slyck, 52 Kan. 622, 35 Pac. 299.

“The gist of the action is not the bond but the wrongful act of the officer. The bond is more in the ■ nature of a collateral security and the cause of action is the misfeasance or malfeasance of the officer. State v. Conway, 18 Ohio St. 235; State v. Blake, 2 Ohio St. 147.

“ ‘The bond does not give the cause of action; the wrong’s or delicts do; and the bond simply furnishes security to indemnify the persons who suffered by reason of such wrongs or delicts; . '. . When the principal debt or cause of action fails, the security must also fail; and, as we have stated before, a sheriff’s bond is simply a security, collateral to the main cause of action. ’ Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518; People v. Putnam, 52 Col. 517, 122 Pac. 796; Spokane County v. Prescott, 19 Wash. 418, 53 Pac. 661.

“A sheriff’s or constable’s bond is simply collateral security for the performance of the officer’s duties and when suit is barred for a breach of his duty action is also barred on his bond. Phillips v. Hail (Tex. Civ. App.), 118 S. W. 190; Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518; Paige v. Carroll, 61 Cal. 211; Sonoma County v. Hall, 129 Cal. 659, 62 Pac. 257.

' “Whenever a cause of action is barred by any statute of limitations, the right to maintain a cause of action, therefor, upon a bond which simply operates as a security for the same thing, must necessarily cease to exist. Ryus v. Gruble, supra.

“So far as actions of this character are concerned, the limitation acts upon the cause, not the form of the action. Chipman v. Morrill & Webster, 20 Cal. 130, 137; Spokane County v. Prescott, 19 Wash. 418, 53 Pac. 661, 67 Am. St. Rep. 733. If no cause of action exists against a principal there can be none against the surety. Leeds Lumber Co. v. Haworth, 98 Iowa 463, 67 N. W. 383, 60 Am. St. Rep. 199, 207 (note).” The judgment of the trial court was affirmed. People for use of Hammond v. Graydon, 306 Ill. App. 163 (leave to appeal denied 306 Ill. App. xxxiii), was an action against a former sheriff and the surety on his official bond for damages alleged to have been sustained on account of. an alleged wrongful levy made by the sheriff. The defendants’ motion to dismiss on the ground that the action was barred by the five year Statute of Limitations was sustained and the plaintiff refusing to plead further the suit was dismissed. On appeal the court, speaking through Mr. Justice O’Connor, said (p. 166):

“The gist of an action on the sheriff’s official bond is the officer’s wrongful act and is barred by the 5-Year Statute of Limitations (sec. 15, ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.275]); People for use of Stubblefield v. Wochner, 244 Ill. App. 30; County of Sonoma v. Hall, 132 Cal. 589; Commissioners of Graham Co. v. Van Slyck, 52 Kan. 622; Spokane Co. v. Prescott, 19 Wash. 418; Hillyard ex rel. Tanner v. Carabin, 96 Wash. 366; Ryus v. Gruble, 31 Kan. 767; People v. Van Ness, 76 Cal. 121; People v. Putnam, 52 Colo. 517, Ann. Cas. 1913 E. pp. 1264-1266, 22 R. C. L. sec. 196.” The court then quotes', with approval, certain parts of the opinion in the Wochner case (244 Ill. App. 30) that we have heretofore quoted. Mr. Justice O’Connor continues (pp. 167, 168):

“In sec. 196, p. 510, 22 R. C. L. in discussing the Statute of Limitations in connection with official bonds it is said that the statute does not commence to run against the action until the close of the principal’s term of office ‘though the conversion of which he is found guilty took place at a much earlier time. . . . Since a bond normally does not increase the liability of a public officer but operates as collateral security against his wrongful acts, it follows that when a cause of action is barred as against the principal it is barred against the sureties. ’

“The Van Ness case [76 Cal. 121], was an action against the commissioner of immigration and his surety. The court after holding the Statute of Limitations barred the action said: ‘public officers and their bondsmen cannot he harassed by suits brought after the statutory periods of limitation have expired.’ And in the Hall case, [132 Cal. 589], an action was brought on the official bond of the county recorder for failure to pay over to the county fees collected by him. The court there referred to a number of authorities and held that the gist of the action was the failure of the principal to pay over the money; that the bond imposed on the principal no. obligation different from that created by the statute and it was not the gist of the action but merely collateral thereto. ‘The bond is not the cause of action, but collateral thereto, and a means of which the county might avail itself.’

“In the instant case, the court did not err in sustaining the defense of the Statute of Limitations.”

People for use of Town of New Trier v. Hale, 320 Ill. App. 645 (leave to appeal denied 321 Ill. App. xv), was a suit in equity brought by a taxpayer on behalf of the Town of New Trier against the Town Collector and sureties on his official bond, to recover Township moneys claimed to have beeii wrongfully withheld by the Town Collector. The trial court dismissed the suit for want of equity on the ground, inter alia, that the action was barred by the five year Statute of Limitations. On appeal the First Division of this court stated (p. 653): “We hold that section 15 of the Limitations Act is applicable and that it is a good defense to plaintiff’s suit.” Plaintiff seeks to evade the effect of the foregoing cases by contending that in the instant proceeding the Treasurers’ bonds “contain an express covenant to pay a specific debt or amount,” but there is no covenant in the bonds to pay a specific debt or amount. The plain purpose of the bonds is to secure faithful performance on the part of the Treasurers and the guarantee that the officer at the end of his term shall turn over to his successors records, moneys, etc., belonging to the Village.

We will briefly refer to the four cases cited by plaintiff in support of its contention that the ten year Statute of Limitations governs. Siefker v. City of Chicago Heights, 297 Ill. App. 113, 117, held that the City of Chicago Heights “was a mere trustee for the collection of these funds, they being the proceeds of a special assessment, or trust fund, for the payment of the bonds issued before the collection of such assessment, and such proceeds of the collection of the special assessment were to have been used only in payment of such bonds.” Plaintiff’s main case in support of its position is Village of Brookfield v. Pentis, 101 F. (2d) 516. There it was charged that the Treasurer made improper distribution and used the special assessment fund to purchase at a discount special assessment bonds for his own account; that he would redeem such bonds with special assessment funds at par, even though there were not sufficient moneys in any installment to redeem all outstanding bonds against it at par; that the Treasurer had misappropriated to his own personal use the special assessment collections and had made wrongful and secret profits therefrom. The Village prayed for a decree directing the Treasurer and his successors to repay and restore the trust funds, viz., moneys misappropriated, misapplied or lost and profits illegally retained by Pentis. It was held that even though the Village was trustee of the funds it could, however, maintain a suit in equity for an accounting to recover from the Treasurer the special assessment moneys converted by him to his own personal use together with any secret profits he made. The Statute of Limitations was not involved in that case, but the defendants’ motion to dismiss on the ground that the plaintiff had an adequate remedy at law and that the Village was not a trustee of the funds, raised the question as to whether or not a trust was involved. While the court stated (p. 519) that “The money was received with other village funds in trust by the treasurer as agent for the village . . . ,” it held that the matter involved an “active express trust,” which gave equity jurisdiction. (Italics ours.) In Ellis v. Ward, 137 Ill. 509, cited by plaintiff, the Statute of Limitations was interposed as a defense by the defendant and the plaintiff successfully met that defense on the ground that a trust was involved. That case, however, involved a suit by a cestui que trust against the directors, who weré trustees. In Becker v. Billings, 304 Ill. 190, the Supreme court was called upon to construe the Ellis case, as the appellant was insisting that the defendants were trustees of an express trust in whose favor the Statute of Limitations did not run, and they were relying upon the Ellis case to support their contention. The Supreme court said (p. 199): “In the case of Ellis v. Ward, supra, the defendants were the directors who had misappropriated the money and who were still directors of the company when the hill was filed against them. .‘It may be conceded that so long as a trustee continues to exercise his powers as trustee in regard to property that he can be called to an account in regard to that trust, but when he has parted with all control over the property and has closed up his relation to the trust and no longer claims or exercises any authority under the trust, the principles which lie at the foundation of all statutes of limitation assert themselves in his favor and time begins to cover his past transactions with her mantle of repose.’ (Clarke v. Boorman’s Exrs. 18 Wall. 493.) ” (Italics ours.) In the instant case, as heretofore stated, Harms, Jr., former Village Treasurer, had ceased to hold that office more than five years before the suit was commenced. In Orschel v. Rothschild, 238 Ill. App. 353, the only question involved was whether on a certain written obligation or indemnity the ten year Statute of Limitations of Illinois or the six year Statute of Limitations of Michigan applied. The indemnifying instrument, signed in Michigan, was sent to the plaintiff in Illinois, where the latter resided and where the moneys were payable under the instrument. The court held that under the facts of that case the Illinois Statute of Limitations applied. We are unable to see wherein City of Chicago v. Gage, 95 Ill. 593, cited by plaintiff, has any application to the question now before us. We find no merit in plaintiff’s contention I.

As to plaintiff’s contention II, that “the plaintiff’s suit is not barred by the Five Year Statute of Limitations as Special Assessment Funds are trust funds, -both in the hands of the Village and the Treasurer : ’ ’ Plaintiff argues that the Treasurer, as well as the municipality, is the trustee of special assessment funds, and that he should be held to a strict accountability in connection with his handling of such funds, and should not be permitted to plead the Statute of Limitations. While it is true that special assessment collections are trust funds and plaintiff is a trustee of such funds, it is not the law that the Village Treasurer is also a trustee of the funds. People v. Village of Bradley, 367 Ill. 301, was an action in mandamus to compel the Village to pay a contractor for public improvements made by him out' of special assessment collections, and a question was presented as to the nature of the funds, and in passing upon the question the court said (p. 307) : “The money collected by the village from the special assessment levied to pay the cost of the improvement constituted a trust fund available to those having legal claims for materials furnished, or labor performed, in the course of the construction of the sewer. . . . We are not impressed with the argument that the village treasurer and not the village is the trustee of the funds.” Village of Broadview v. Toman, 309 Ill. App. 485, was a suit by the Village against the County Collector to recover from the latter a portion of the special assessment collections retained by him. There also a question arose as to the nature of the funds, and we said (p. 499): “In our judgment, no trust relationship between the County Collector and the bondholders of the Village existed, although a trust relationship would exist between the Village and the bondholders as to moneys in the custody of the Village from collections of special assessments.” (Italics ours.) In support of the instant appeal plaintiff strongly relies upon the case of Village of Brookfield v. Pentis, supra, but, as we have heretofore shown, the court there held that the municipality was the trustee of the special assessment fund and charged with all the duties of such a fiduciary, including the obligation to spread the assessment, collect it and make distribution thereof in conformity with the Statute, and that the Treasurer received certain special assessment funds “as agent for the village.” The instant suit does not present a proceeding between a trustee and a cestui que trust. The complaint disavows any claim that the Treasurer received any of the money personally and there is no element of fraud, unjust enrichment or withholding of public moneys from which a constructive trust might be implied. In Hayward v. Gunn, 82 Ill. 385, 389, the court said: “ ‘To exempt a trust from the bar of the statute, it must be, first, a direct trust; second it must be of the kind belonging exclusively to the jurisdiction of a court of equity; and, third, the question must arise between the trustee and the cestui que trust.’ Angelí on Limitations, chap. 16, sec. 166; The Governor, etc. v. Woodworth, 63 Ill. 254.” (See, also, 37 C. J. 918.) In the instant case Harms, Jr., was appointed to the position of Village Treasurer by plaintiff. In that position he was an agent or servant of plaintiff Village and sustained no trust relationship to the bondholders.

Plaintiff’s last contention is that the complaint alleges that it had no notice of the breach of trust by the Treasurer until the year 1936 and therefore the Statute of Limitations did not commence to run until that date. There is no allegation in the amended complaint of fraud or concealment. Nor is there any allegation that plaintiff might not, with ordinary diligence, have discovered the alleged acts at or about the time they occurred. There is no allegation that the Treasurers fraudulently concealed their actions or that they committed any affirmative act or made any representation which would have tended to prevent the discovery of the said acts. Furthermore, the amended complaint alleges that the Village regularly caused to be made audits of the collections and disbursements of the Village Treasurers for the purpose of determining the amount of funds still on hand applicable to the respective special assessments and the installments thereof, and there is no allegation that the audits did not show the acts which form the basis of this suit. The general rule that governs the instant contention is stated in Skrodzki v. Sherman State Bank, 348 Ill. 403, 406, 407, as follows:

“The first question arises on the plea of the Statute of Limitations and replication thereto. Section 22 of that statute provides: ‘If a person liable to an action fraudulently conceals the cause of such action'from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not after-wards. ’ In Lancaster v. Springer, 239 Ill. 472, this section was construed as follows: ‘The concealment of a cause of action which will prevent the operation of the Statute of Limitations must be something of an affirmative character designed to prevent, and which does prevent, the discovery of the cause of action. . . . Such concealment must consist of affirmative acts or representations, ’ citing Fortune v. English, 226 Ill. 262, and Wood v. Williams, 142 id. 269. In Keithley v. Mutual Life Ins. Co., 271 Ill. 584, this court considered that section. It was there held that mere silence by the person liable is not concealment of a cause of action, but that such concealment must consist of affirmative acts or representations. It was there also held .that fraudulent misrepresentations which form the basis of the cause of action do not constitute a fraudulent concealment in the absence of proof of acts or representations tending fraudulently to conceal the cause of action, and that the rule that the statute begins to run only from the discovery of the fraud does not apply when the party affected by the fraud might with ordinary diligence have discovered it. This is likewise the rule adopted by other courts. Norris v. Haggin, 136 U. S. 386, 34 L. ed. 424; Teall v. Schroder, 158 id. 172, 39 L. ed. 938; Hecht v. Slaney, 72 Cal. 363,14 Pac. 88; Clark v. VanLoon, 108 Iowa 250,79 N.W.88.”

We feel impelled to state that the position of plaintiff in the instant case does not appeal to our sense of justice, as it is evident that plaintiff’s alleged cause of action seeks to hold its agents, the Village Treasurers, liable for acts that were done in pursuance of Section 43 of the Local Improvement Act as amended in 1927, which amendment, as heretofore stated, was declared unconstitutional after Harms, Jr., had ceased to hold the position of Village Treasurer.

In view of our conclusion that the five year Statute of Limitations applies to plaintiff’s claim, we do not deem it necessary to consider a number of points argued by defendants in support of the judgment, but we may say, in conclusion, that we are impressed with a contention of defendants, very earnestly advanced, that the Village Treasurer in the instant suit was a ministerial officer; that he was bound to follow the ordinances of the Village and the laws of Illinois; that he had no right to question the constitutionality of any Act of the general assembly; that a public official, so far as ministerial acts are concerned, is not liable to account for acts he performed in good faith under a statute that was declared unconstitutional after the acts had been performed. It would be, in our judgment, a serious reflection upon justice if the law did not support defendants ’ contention. However, the law fully supports defendants’ contention. (See Fergus v. Brady, 277 Ill. 272; Fahey v. City of Bloomington, 268 Ill. 386, 389; People v. Salomon, 54 Ill. 39, 46.) It would unduly extend this already lengthy opinion to quote what our Supreme court has said upon this subject.

On'April 9, 1945, there was presented to this court a motion by defendants to strike from plaintiff’s reply brief a certain point that was not raised in plaintiff’s brief, and thereafter we entered an order allowing the motion. Thereafter plaiiftiff, conceding that the point made by defendants in their said motion was a meritorious one, filed a motion for leave to file an amended reply brief, and that motion was reserved to hearing. Upon the oral argument it was agreed that we might consider plaintiff’s reply brief but disregard the point in question. It is unnecessary, therefore, for plaintiff to file an amended reply brief, and the motion to file an amended reply brief will be denied.

Plaintiff’s case is devoid of equity and the judgment of the Superior court of Cook county is affirmed.

Judgment affirmed.

Friend, P. J., and Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Sullivan

license: Public Domain

text:
    First National Bank of Chicago, Appellee, v. Bettina T. Whitlock, Appellant. Elizabeth Whitlock Wilson et al., Appellees.
    Gen. No. 42,964.

      Heard in the second division of this court for the first district at the February term, 1944.
    Opinion filed November 6, 1945.
    Released for publication November 20, 1945.
    John W. Dorgan and Edward R. Newmann, both of Chicago, for appellant; Ode L. Rankin, of Chicago, of counsel.
    Wilson & McIlvaine, of Chicago for certain appellee; Clay Judson and Sidney K. Jackson, both of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This appeal by Bettina T. Whitlock seeks to reverse a’ decree, which dismissed her amended cross complaint for want of equity. The First National Bank of Chicago (hereinafter for convenience sometimes referred to as the Bank), a successor trustee under the will of William A. Whitlock, deceased, filed its complaint on January 13, 1942 against its cotrustee, Bettina T. Whitlock, and all the beneficiaries under said will alleging in part that Bettina T. Whitlock, individually, the testator’s widow and one of the beneficiaries under a trust created by his will, claimed payments out of the principal or corpus of such trust. The complaint requested the court’s instructions as to plaintiff’s duty as trustee in view of a decree theretofore entered on December 14, 1934.

Bettina T. Whitlock filed an answer and an affirmative defense. Elizabeth Whitlock Wilson, the testator’s daughter and one of the beneficiaries under the aforesaid testamentary trust, filed motions to dismiss the bank’s complaint and to dismiss the affirmative defense of Bettina T. Whitlock. The other beneficiaries filed an answer to the bank’s complaint.

The motions to dismiss of Elizabeth Whitlock Wilson were sustained on November 23, 1942. The bank elected to stand upon and abide by its complaint and same was thereupon dismissed. The bank has not appealed from or otherwise questioned such order of dismissal.

Pursuant to leave granted, Bettina T. Whitlock filed a cross complaint on January 7,1943 to which the bank was not made a party and it filed no pleading thereto. Motions to dismiss the cross complaint were filed but before such motions were heard Mrs. Whitlock filed an amended cross complaint. Motions to dismiss the amended cross complaint were filed by Elizabeth' Whit-lock Wilson. and the other beneficiaries. These motions were sustained and Bettina T. Whitlock electing to abide by her amended cross complaint, same was dismissed for want of equity on June 21, 1943. It was from this final order of dismissal that this appeal was taken.

For a proper understanding of the issues presented herein it is necessary to set forth somewhat fully the salient facts concerning this controversy since its inception, as they appear from the allegations of the amended cross complaint'of Bettina T. Whitlock.

William A. Whitlock died May 3,1928 leaving a last will and testament dated August 5, 1927, which was admitted to probate in the probate court of Cook county on June 22,1929.

That portion of his will involved herein is as follows :

“Fifth: I give, devise and bequeath all the rest and residue of my estate, real, personal and mixed and wheresoever situate to Bettina T. Whitlock and the Union Trust Company, of Chicago, Illinois, its successor and successors in trust, as. Trustees, in trust and upon the terms, trust and conditions hereinafter set out:

“A. For and during the life of my wife, Bettina T. Whitlock, the Trustees shall pay to her the net income from said residue estate and I expressly authorize the Trustees, in addition to said payments to be made of such income to said Bettina T. Whitlock, to make appointment of and to pay said Bettina T. Whitlock out of the principal from which such income is derived, and in diminution of such principal, such amounts not to exceed in any one year the amount of five per cent (5%) of the amount of such principal as valued by the Trustees at the beginning of such year, as said Trustees shall be of the opinion should be paid and applied to meet any emergency such as illness, or the due care, maintenance and comfort of said Bettina T. Whitlock, the joint judgment of the Trustees to be conclusive in each instance as to the existence of any emergency as occasion for such payment.

“B. Upon the death of my wife, the said Bettina T. Whitlock, the surviving trustee shall transfer to my daughter, the said Elizabeth C. Whitlock [now Elizabeth Whitlock Wilson], one-half of the principal and undistributed net income of said residuary estate free from all trusts hereunder.

“C. The surviving Trustee shall pay semi-annually the net income from the remaining one-half of said residuary estate to my brother, the said Harry O. Whitlock, for and during his life and upon the death of said Harry 0. Whitlock the surviving Trustee shall divide said remaining one-half of my residuary estate into as many shares as there are children of said Harry 0. Whitlock surviving him, and shall transfer one of such shares to each of said children.”

The trustees accepted the foregoing trust created by the will and after the trust fund had been established by the executors proceeded to administer said trust. On April 29, 1931 a complaint was filed in the circuit court (Case No. B-219401) by the two trustees (Bettina T. Whitlock and the First Union Trust and Savings Bank, which corporate trustee has been succeeded by the First National Bank of Chicago) for the construction of paragraph Fifth-A of the will, heretofore set forth, and of certain other provisions thereof, which latter provisions are not involved in the instant proceeding.

In case No. B-219401 Bettina T. Whitlock, individually, filed a petition claiming that she was entitled to receive 5 per cent of the then principal of the trust fund for the year 1932, which amounted to $4,820.94, and asked that the court authorize and direct the trustees to make immediate payment of that sum to her. The other beneficiaries of the trust, all of whom were remaindermen, responded to said petition and objected to the payment to Bettina T. Whitlock of the $4,820.94 requested by her for the year 1932, principally on the ground that no emergency existed as contemplated by the will to authorize such payment and that, if she were paid that amount, it would constitute waste of the assets of the corpus of the trust. Thereafter on August 2, 1932 a release was executed by Bettina T. Whitlock which recited that the consideration therefor was the avoidance of further litigation and costs, the withdrawal of the objections of the remaindermen to the payment to her of $4,820.94 out of the principal of the trust fund for the year 1932 and the payment to her of said sum. The release then declared that “there is a bona fide dispute as to the existence of any emergency at this time to occasion such payment” and stated that she “does hereby release, surrender, relinquish and disclaim any and all rights or claims which she may now have or might in the future arise in her behalf against the said principal of said trust fund.” The right of Bettina T. Whitlock to the net income of the trust fund during her lifetime was expressly declared not to be modified or affected by the release.

Pursuant to and predicated upon said release an order was entered by Judge Thomas J. Lynch on August 4,1932 authorizing the payment of said sum of $4,820.94 to Bettina T. Whitlock out of the principal of the trust fund. The trustees complied with this order and paid said amount to her.

Thereafter case No. B-219401 remained dormant until Bettina T. Whitlock, individually, filed a cross complaint therein in 1934 in which she alleged that the aforesaid release was obtained from her by duress; that it was void for want of consideration; and that she had no interest in the principal of the trust which she could release. Her cross complaint concluded with the prayer that the trustees be directed to pay her five per cent of the principal of the trust for the year 1934. Answers were filed by the other beneficiaries denying the allegations of her cross complaint and alleging that there had been a valid settlement and release, of her right to any further payments out of the principal of the trust fund. While the issues made up by her cross complaint and the answers thereto remained pending and undetermined by the trial court, a stipulation was entered into by Bettina T. Whitlock and all of the other beneficiaries of the trust and filed on December 14, 1934. This stipulation was incorporated in and made part of a consent decree entered on the same day by Judge John Prystalski.

This decree states “that for the purpose of a complete settlement of these proceedings” the parties (other than the trustees) “have entered into a stipulation filed this day in open court.” The stipulation describes the pleadings and contentions of the various parties and sets forth the release executed by Bettina T. Whitlock on August 2, 1932 and the order of Judge Thomas J. Lynch of August 4, 1932. It recites that the parties thereto, “to prevent the waste of the assets” of the trust and “to enter into an amicable settlement of differences, ’ ’ agree that a final order and decree, “completely disposing of said litigation may be entered at this time, that the parties hereto do hereby waive and release»any and all errors which may occur in the entering of said order, and do hereby waive any and all right of appeal therefrom.” The stipulation further recites that the release of August 2, 1932 was the free and voluntary act of Bettina T. Whitlock; that the other beneficiaries were entitled to make the objections which they waived; that she had such an interest as could be released; that there was valid consideration for the release; that she was then in 1934 in dire need of funds; that she no longer had any rights in or to the principal of the trust and that after the payment then agreed to be made to her she was forever barred from asserting any claim in the future for any payment out of the principal of the trust fund. The stipulation also provided that the trustees should pay to Bettina T. Whitlock the sum of $4,014.37, being 5 per cent of the principal of the trust fund for 1934; and that during her lifetime she was entitled to the net income from the trust fund but had no further right to invade the corpus. It then pro- . vided for the entry of a decree in accordance with its provisions. It was signed by all the parties other than the trustees and was approved by their respective counsel.

The consent decree found that the court had jurisdiction of the parties and the subject matter; that the release executed by Bettina T. Whitlock on August 2, 1932 was her free and voluntary act; that the parties’ rights were as stated in the stipulation; that she had been paid $4,890.94 pursuant- to the order of August 4, 1932; that said release and order “are henceforth from this day res judicata” of her rights in the principal of the trust fund; that Bettina T. Whitlock “has no further rights in or to the principal of said residuary estate” under paragraph Fifth of the will of William A. Whitlock, deceased, and “is forever barred from asserting any claim or claims against or from receiving any payments out of the principal or corpus of said residuary trust estate established in Paragraph Fifth of said will . . . ”; and that “the settlement in accordance with the stipulation filed this day herein and set forth in full is fair and equitable, and it is for the best interest of the minor defendant, Betty Jane Whitlock; that she be bound by this decree.” Said consent decree then directed the trustees to pay Bettina T. Whitlock $4,014.37 “as a settlement of these proceedings and as further consideration for her execution of the aforesaid stipulation.”

The amended cross complaint filed by Bettina T. Whitlock in the instant case, after averring the foregoing facts, alleged substantially that the release executed by her as set forth in the stipulation and consent decree was null and void; that it was wholly without consideration; that the stipulation and decree of December 14, 1934 were void and of no effect, being without consideration; that the stipulation appearing in the decree and the decree itself were void from the beginning in that Bettina T. Whitlock and the First National Bank of Chicago in their capacities as co-trustees were necessary and essential parties to said stipulation; that neither of the cotrustees consented to nor executed said stipulation and that the court exceeded its power in entering said decree; that Bettina T. Whitlock was at all times legally powerless to alienate, sell, assign or transfer the benefits of said trust created in her behalf by said will; that she is in dire need; that she has been at all times entitled to receive annually a sum equal to 5 per cent of the corpus of the trust, subject to the discretion of the trustees, for the purpose of meeting the emergency contemplated in the will and for her due care, maintenance and comfort; and that ever since the entry of said decree on December 14, 1934, she had been wrongfully deprived of and denied the benefit of said income.

The amended cross complaint concluded with the prayer that the court decree that the stipulation upon which the decree of December 14, 1934 was based was void; that the release executed on August 2, 1932 was void; that said stipulation and said release were without consideration; that Bettina T. Whitlock had no power to alienate, transfer, sell or assign her benefits under the trust created by the will; and that she is entitled to receive 5 per cent of the corpus of the trust for the year 1928 and annually thereafter, within the discretion of the trustees, except for the years 1932 and 1934.

The principal ground alleged in the motions to dismiss the amended cross complaint of Bettina T. Whit-lock was that all of the issues in this case and all the claims which she has presented herein were finally adjudicated by the consent decree entered on December 14, 1934 in case No. B-219401, more than seven years before the filing of the complaint in this case, and that said decree is res judicata of all such issues and claims.

The paramount question presented for our determination and really the only question that need be considered is whether the consent decree entered December 14,1934 in the prior litigation is res judicata of the claims asserted and the relief sought by Bettina T. Whitlock’s amended cross complaint in the instant case.

The parties are the same in this case as they were in the proceedings that culminated in the entry of the consent decree on December 14, 1934 and Bettina T. Whitlock advanced the same claims in the aforesaid prior litigation as she now asserts in her amended cross complaint. The law is well settled that a judgment or decree of a court of competent jurisdiction is a complete bar to a subsequent suit between the same parties on the same demand or cause of action and, even though such judgment or decree may be erroneous, it is binding upon the parties until reversed and cannot be collaterally assailed. (People v. Russel, 283 Ill. 520; Godschalck v. Weber, 247 Ill. 269; Anderson v. West Chicago St. R. Co., 200 Ill. 329.)

To avoid the application of this established rule to the situation presented here appellant attempts to differentiate between consent decrees and decrees that are not entered by consent. She contends that “a- consent decree is not res adjudicata of any fact”; that ‘ ‘ stipulations as to what the law is when decreed upon are void as not being binding upon the court” and that “inequitable consent decrees will not be enforced.” The only Illinois decision that she cites in support of her contention that the consent decree of December 14, 1934 is not res judicata and a complete bar to the claims advanced by her in the instant action is Wadhams v. Gay, 73 Ill. 415. In. that case the court refused to enforce a consent decree, wherein the estate of a father in fee had erroneously been recited and found in such decree to be a life estate with remainder in his children.. There the court said at p. 437:

“The decree is a misconstruction of the will in declaring a life estate, when the will gave a fee. And although error of law is not to be alleged against a judgment or decree by consent, so as to reverse it, it does not necessarily follow that when an application is made by a bill in chancery for the aid of equity, in carrying the same into execution, and really to supply an omission therein, the character of the judgment or decree, as whether rightful or not, must be entirely shut out of view in determining whether the court will be moved to act, or remain passive.”

Appellant also cites a few authorities from other jurisdictions which she claims support her instant contention, but we deem it unnecessary to discuss same, since regardless of what the rule may be elsewhere, the law is firmly established in this state that a consent decree, complete in itself, is valid and res judicata of the issues determined therein.

In a number of cases wherein Wadhams v. Gay, supra, has been cited in support of the proposition that a consent decree is not res judicata, that proposition has been rejected and the Wadhams case distinguished. In Hultberg v. Anderson, 252 Ill. 607, the court stated at p. 616, that the rule enunciated in the Wadhams case was that “when a bill is filed to carry into execution a former decree that is incomplete or defective to such an extent that it cannot be executed without a further decree curing the defect and making it complete, the court may, and will, inquire whether the decree is just and equitable. But this rule has no application to decrees that are complete and perfect and free from any inherent defect which prevents their execution.”

In Merriam v. Merriam, 207 Ill. App. 474, this court adverting to the Wadhams case said at p. 478:

“In support of the proposition that a consent decree is not res judicata, the cases of Wadhams v. Gay, 73 Ill. 415; Umlaf v. Umlaf, 117 Ill. 580; Wahle v. Wahle, 71 Ill. 510, are cited. Each of these cases was analyzed and commented upon by the Supreme Court of the United States in the case of Harding v. Harding, 198 U. S. 317, where the same contention was made. It was there held that these cases did not support such contention, and that the general rule in Illinois was ‘that a consent decree has the same force and effect as a decree in invitum,’ citing Knobloch v. Mueller, 123 Ill. 554; O’Connell v. Chicago Terminal Transfer R. Co., 184 Ill. 308. To the same effect is Healy v. Deering, 231 Ill. 423, where it was held that a decree entered by consent of the parties is binding upon them and cannot be reversed or impeached by them or set aside by a bill of review or a bill in the nature of a bill of review, except for fraud.”

In Knobloch v. Mueller, 123 Ill. 554, the court said at p. 565:

“Decrees of courts of chancery, in respect of matters within their jurisdiction, are as binding and conclusive upon the parties and their privies as are judgments at law; and a decree by consent, in an amicable suit, has been held to have an additional claim to be considered final. (Alleson v. Stark, 9 A. & E. 225.) Decrees so entered by consent cannot be reversed, set aside or impeached by bill of review or bill in the nature of a bill of review, except for fraud, unless it be shown that the consent was not, in fact, given, or something was inserted as by consent that was not consented to.”

In People v. Spring Lake Drainage & Levee District, 253 Ill. 479, the court said at pp. 491, 492:

“A consent decree is one based upon the consent or agreement of the parties, which may supersede both pleading and evidence and even go to the extent of pointing out and limiting the relief to be granted. Such a decree is absolutely conclusive upon the consenting parties and cannot be amended or varied without like consent, nor can it be re-heard, appealed from or reviewed upon writ of error. (Schmidt v. Oregon Gold Mining Co., 28 Ore. 9; 52 Am. St. Rep. 759.) . . . A stipulation concerning a pending cause in court is an obligation unlike ordinary contracts be- > tween parties not in court. (Ward v. Clay, 82 Cal. 508; Barry v. Mutual Life Ins. Co., 53 N. Y. 536.) Since no consideration is necessary to its validity (Howe v. Lawrence, 22 N. J. L. 104,) no mutuality is required, and it may bind those incapable of binding themselves out of court and is subject .to the supervision of the court. (20 Ency. of Pl. & Pr. 607.) All stipulations entered into by parties or their attorneys in respect to the conduct or control of their rights in the trial of a cause will be enforced by the courts in a summary manner unless such stipulations are unreasonable or contrary to public morals. Thus, a party to a pending litigation may waive, by stipulation, his statutory or constitutional rights and the court will hold him bound by such stipulation. . . . It is the policy of courts to enforce stipulations fairly made between attorneys or parties relating to the conduct of suits, unless good cause is shown to the contrary. ’ ’

(To the same effect are Cox v. Lynn, 138 Ill. 195; Bonney v. Lamb, 210 Ill. 95; King v. King, 215 Ill. 100 ; Healy v. Deering, 231 Ill. 423; Reardon v. Youngquist, 189 Ill. App. 3; Bayer v. Bloch, 246 Ill. App. 416.)

It is clear from the foregoing authorities that where the parties to a ease have either stipulated or otherwise consented to the entry of a decree they are bound thereby and that a consent decree, which is acceptable to the parties themselves as a determination of the controversy and is sanctioned by the court, has the same force and effect as a judgment or decree entered after a contest, unless the consent of the complaining party was procured by fraud.

Was there any fraud on the part of the cross defendants by which they procured appellant’s consent to the entry of the decree on December 14, 1934? If there was, appellant certainly was not aware of it either then or now. She was represented by competent counsel throughout every phase of this litigation. Her stipulation upon which the consent decree was based was predicated in large measure upon the release she executed in 1932. She has never claimed that either the release or stipulation was procured by fraud. There is not a single allegation in her amended cross complaint that fraud entered into any of the negotiations or dealings between herself and the other beneficiaries of the trust in question. Although in stating the theory of the amended cross complaint in appellant’s original brief her counsel made no mention of fraud, he later indulges therein in the specious argument that when this case is viewed as a whole and in perspective a lurid picture of constructive fraud or fraud in law is shown on the part of cross defendants, which “may exist without actual fraudulent intent, and where the conscience is not necessarily affected by it.” The major difficulty with appellant’s position in this regard is that the element of fraud does not enter into this case at all, since she did not allege or even intimate in her amended cross complaint that the cross defendants or any of them were guilty of either actual or constructive fraud in procuring her consent to the entry of the decree of December 14, 1934.

As already shown, under the trust in question Bettina T. Whitlock was given a vested interest in the net income from the corpus of said trust during her lifetime and her right to receive such net income has never been questioned. Under said trust she was also given a contingent interest in the principal of the trust whereby she was entitled to receive payments therefrom, if in the joint judgment of the trustees such an emergency existed as is specified in paragraph Fifth-A of the will.

Appellant’s principal contentions are that as a matter of equity the release and stipulation should be held to be void because both of them were executed by her without consideration and that she had no power under the will to alienate or release her right to receive payments out of the principal of the trust fund.

Holding as we do that the consent decree is res judicata of every claim and demand made in Bettina T. Whitlock’s amended cross complaint in the case at bar, it is unnecessary to answer her foregoing contentions. However, a simple answer to appellant’s contention that she had no power under the will to alienate or surrender her contingent interest in the principal of the trust fund is that the law is settled in this state that she had such power. (Crum v. Sawyer, 132 Ill. 443.) That there was sufficient consideration to support the release and stipulation executed by Mrs. Whitlock and upon which the consent decree was based cannot be seriously questioned. (Dougherty v. Duckels, 303 Ill. 490; Stipanowich v. Sleeth, 349 Ill. 98.) But, as already shown, even though the consent decree, based as it was on the release and stipulation, was erroneous in either of the foregoing respects, it was still binding on appellant.

It is asserted in appellant’s brief that “we have the anomaly of a decree being entered [December 14, 1934] upon the stipulation of certain parties to the record but not joined by the trustees who were complainants, and the only persons having control over the subject matter of the stipulation. The complainants, were the executors and trustees under the said will and the defendants were the beneficiaries under the will. Bettina T. Whitlock, individually, was a party to the stipulation, but the other executor and trustee was not, so the trustees never were bound by the stipulation or the decree. So the stipulation meant nothing so far as the trustees are concerned, nor did the decree upon the stipulation bind them as trustees. They still owe the duty to proceed and carry out the intention of the testator regardless of the consent decree, or the stipulation.”

This contention is completely answered in Wolf v. Uhlemann, 325 Ill. 165, which was a suit involving the validity and construction of a will and the beneficiaries approved a settlement. The Northern Trust Company as trustee contended that it had not been advised concerning the alleged controversy or of an offer to make a settlement thereof. It further claimed there was no serious doubt with respect to the will and no need for controversy between the beneficiaries. It also claimed that it should not be required to make distribution of the corpus under the proposed settlement and that the court had no jurisdiction to approve the settlement. The trial court entered a decree approving the settlement and the trustee appealed. In affirming the decree the Supreme Court said at pp. 173 and 184:

“The Northern Trust Company, as trustee, has no beneficial or pecuniary interest in the trust fund except such interest as it may have in obtaining remuneration for services to be rendered in its official capacity, and its position as such under the will has not been materially affected by the proposed settlement agreement. . . . Appellant, as trustee, did not have or claim to have any beneficial interest in the fund. The trustee’s rights and interests were not affected by a decree which bound all the parties in interest and protected the trustee in the distribution of the fund. It was no concern of the trustee how the parties beneficially interested settled the threatened controversy if the trustee was protected in making the distribution. That seems to be the only question the trustee had any interest in or should be concerned about. In Merrill v. Atwood, 297 Fed. 630, the district court of Rhode Island held that a testamentary trustee, as against the heirs and beneficiaries in a trust, was practically a stakeholder. (See also, Press v. Woodley, 160 Ill. 433; Barth v. Richter, 12 Col. Ct. of App. 365; Ratliff v. Patton, 37 W. Ya. 197; Schwartz v. Ritter, 186 Ill. 209.)”

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

• For the reasons stated herein the decree or order of the circuit court of Cook county dismissing Bettina T. WMtlock’s amended cross complaint for want of equity is affirmed.

Decree or order affirmed.

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


text:
    Margaret Nofree, Appellant, v. John Leonard, Appellee.
    Gen. No. 43,237.

      Heard in the second division of this court for the first district at the October term, 1944.
    Opinion filed November 6, 1945.
    Released for publication November 20, 1945.
    Peden, Ryan & Andreas, of Chicago, for appellant; Gerald Ryan, of Chicago, of counsel.
    Arnold F. Berger, of Chicago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

This is a forcible detainer action brought by plaintiff, Margaret Nofree, against the defendant, John Leonard, to recover possession of the first floor apartment in the three-flat building at 7751 Saginaw avenue, Chicago, Illinois, which was owned by plaintiff, her father and brother in joint tenancy. On defendant’s motion at the close of plaintiff’s evidence the trial court made a finding against plaintiff and entered judgment in favor of defendant on said finding. Plaintiff appeals.

It is conceded that defendant’s lease had expired and been terminated in accordance with its terms and that plaintiff proceeded in compliance with the provisions of the Illinois statutes pertaining to the institution and maintenance of this” action. But in addition to such compliance it was necessary for plaintiff to show that she had a right to recover possession of the premises under the Rent Regulations issued pursuant to the Emergency Price Control Act of 1942 (56 Stat. chap. 26, p. 29, 50 USCA, Appendix, sec. 921).

The applicable provisions of the Federal Rent Regulations (Sec. 1388.1181, Rent Regulation for Housing) are as follows:

“Section 6, Removal of tenant: (a). Restrictions on removal of tenant.

‘ ‘ So long as the tenant continues to pay rent . . . no tenant shall be removed from any housing accommodation by action to evict . . . notwithstanding that . . . his lease . . . has expired or otherwise terminated . . . unless:

“(6) Occupancy by landlord. The landlord . . . seeks in good faith to recover possession of such accommodations for immediate use and occupancy as a dwelling for himself.” (Italics ours.)

It will be noted that the foregoing section 6 (a) was promulgated for the sole benefit of tenants. It prohibits the eviction of any tenant so long as he continues to pay his rent, even though “his lease has expired or otherwise terminated.” But there are exceptions to that regulation, one of which (paragraph (a) (6)) provides, inter alia, that a tenant may be removed by an action to evict when the landlord owned the housing accommodations prior to October 20, 1942 and “seeks in good faith to recover possession of such accommodations for immediate use and occupancy as a dwelling for himself.” The instant action was brought under this exception and it is readily apparent that same was incorporated in the Rent Regulations primarily for the benefit of the owner who in good faith needed and desired the housing accommodations for his own occupancy as a dwelling. The only issue of fact before the trial court about which there could possibly be any controversy was whether plaintiff in good faith desired to occupy the premises as a dwelling for herself and family or whether she did not act in good faith and brought this action for the purpose of securing defendant’s eviction merely upon the pretext that she desired to occupy the premises as a dwelling for herself and family.

The facts, briefly stated, as shown by plaintiff’s evidence are that on January 16, 1941 she, her brother and her father became the owners in joint tenancy of the three-flat building at 7751 Saginaw avenue; that plaintiff, her husband, father and brother occupied the first apartment of the building from 1930 to May 1, 1941; that by a.written lease executed by Neis Magnuson, plaintiff’s father, the said first apartment was rented to defendant for the two-year period — May 1, 1941 to April 30, 1943; that there was a provision in the lease for its annual renewal if neither of the parties terminated same by 60-day written notice; that when the lease was made to defendant on May 1, 1941, plaintiff and the other members of her family moved from the first floor apartment to the third floor apartment in the same building; that about two years before the trial plaintiff’s brother entered the United States Navy; that from the time plaintiff and her family moved into the third floor apartment until her brother joined the Navy, he and his father did the'necessary janitor work in and around the building — tending the heating plant, sweeping the stairs, etc.; that her brother did all the heavy work but that after he left her father did all the janitor work, she and her husband being employed; that plaintiff’s father was seventy-seven and one-half years old and shortly after his son entered the service he became afflicted with rheumatism and it “was hard for him to walk up three flights of stairs”; that on January 13,1944 defendant was served with a written notice by plaintiff’s father terminating his lease of the first floor apartment as of April 30, 1944 and advising him of the landlord’s desire to occupy the apartment with his family; that defendant disregarded such notice as well as a 30-day notice that was later served upon him and remained in possession of the first floor apartment; that on May 1, 1944 plaintiff rented the third floor apartment to a tenant who had not theretofore lived in the building and she and her family moved out of same —first to a hotel and then to a two-room furnished apartment; that because of the cramped quarters in this furnished apartment she and her husband were required to sleep in the living room and her father on a couch in the dinette; and that her father still “does janitor work in the building” and sprinkles a small lawn in front of the premises.

There can be no question but that plaintiff’s evidence showed that she and her father and brother owned the building in question in joint tenancy since prior to October 20, 1942. The only other element which it was essential for plaintiff to prove in order to recover possession of said apartment was her good faith in desiring to occupy the premises as a dwelling for herself. We think that the term good faith as used in paragraph (a) (6) of the Rent Regulations can only be reasonably construed as meaning an honest desire by the owner of housing accommodations to recover possession thereof for immediate use and occupancy as a dwelling for himself and that said owner legitimately required said housing accommodations to live in. As thus construed plaintiff’s evidence certainly made out at least a prima facie case that she acted in good faith.

Defendant insists that the good faith the owner is required to exercise under paragraph (a) (6) of the Rent Regulations is toward the tenant, whose removal is sought, and that plaintiff’s own evidence showed affirmatively that she did not act in good faith in that she failed to afford the defendant an opportunity to exchange his first floor apartment for her third floor apartment before she moved out of same. It was because the trial judge agreed with defendant’s position in this regard that he held as a matter of law that plaintiff’s evidence did not make out a prima facie case. In our opinion the trial court erred in so holding, because, even though it be assumed that plaintiff was required to prove that she acted in good faith toward defendant before she would be entitled to recover possession of the first floor apartment, she met that requirement because she testified that while she did not personally submit the third floor apartment to defendant, her agent did.

Moreover, the provisions of the Rent Regulations under consideration do not make the attitude- or conduct of the owner toward the tenant whom he seeks to dispossess the criterion of the good faith required. What those provisions do require is that the owner prove that he “seeks in good faith to recover possession of such accommodations for immediate use and occupancy as a dwelling for himself” and, as already stated, the only issue of fact that could be raised in this case as to plaintiff’s good faith was whether she honestly desired and legitimately needed the premises as a dwelling for herself or whether she did not act in good faith but merely asserted her desire and need to occupy the premises as a dwelling for herself as a pretext for gaining possession of such premises.

While the fact that plaintiff did not offer to exchange the third floor apartment with defendant for his first floor apartment when she moved out of her building, if she did not make such offer, was competent testimony and admissible in evidence, it was not conclusive or controlling on the question of the good faith required of plaintiff under paragraph (a) (6) of the Rent Regulations. While such fact would probably indicate unfairness and ill-will toward defendant, it could only be. considered in connection with all the other facts and circumstances in evidence in so far as it might tend to show whether plaintiff did or did not act in good faith in desiring to occupy the premises as a dwelling for herself and family.

No case has been cited and we have been unable to find one, wherein a court of review of this State has considered or construed paragraph (a) (6) of the Federal Rent Regulations and particularly the term “good faith” as used therein. However, the Supreme Court of Minnesota in the recent case of Sviggum v. Phillips, 217 Minn. 586, 15 N. W. (2d) 109, did construe the foregoing section under a factual situation strikingly similar to that presented here. In that case the plaintiff was an elderly unmarried woman who owned a four-flat building — two apartments on the first floor and two on the second. She occupied apartment No. 2 on the first floor from 1930 to 1933, when she moved to a hotel. The apartments were ordinarily rented unfurnished but upon moving to said hotel she removed part of her furniture to apartment No. 3 on the second floor and rented that apartment furnished. In February 1942 apartment No. 2 on the first floor was vacated and plaintiff planned to move her furniture from apartment No. 3 back to apartment No. 2 and occupy the latter apartment herself. This plan did not materialize and in April 1942 she rented apartment No. 2 unfurnished to defendant. The relationship between plaintiff and defendant became unfriendly and a series of disputes were aired before the OPA. In June 1943 the tenant in apartment No. 3 vacated and plaintiff’s furniture then became available for her use. She notified defendant on June 28,1943 that she desired apartment No. 2 for her own use. Defendant refused to vacate apartment No. 2 and plaintiff brought an action to recover the possession of same. After plaintiff had offered her proof and rested the defendant moved for a directed verdict, which motion was granted. There the court in reversing the judgment of the trial court entered on the directed verdict and remanding the cause for a new trial said at pages 588-591 of the first mentioned report:

“We do not overlook the fact that there were a number of circumstances indicating that plaintiff desired to have defendant removed from the premises because of ill feeling between the parties regarding the rent ceiling and the nonpayment of rent. Numerous consultations were had with the OPA as a result of these disagreements. This was not, however, determinative or conclusive of the issue whether plaintiff in good faith desired to occupy the premises as her dwelling. It was one of the factors to be taken into consideration by the trier of fact. In Colwell v. Stonebraker (D. C. Mun. App.), 31 A. (2d) 866, 867, tried to the court, where findings for the landlord were sustained, the court said:

“ ‘That the rent of the selected premises is low when contrasted with that of similar housing units, the availability of other quarters, and objection to or even ill-will toward a particular tenant, are matters properly admitted in evidence as bearing upon the good faith of one seeking possession under Section 5 of the Bent Control Act. But no one, or all in combination, necessarily constitute bad faith. They are items of evidence, to be considered by the court with the other evidence in the case. ’

“It is also true that some inconsistency may be ■ pointed to in the reasons assigned by plaintiff for desiring to move into the apartment. For example, she stated that she did not care to move into one of the apartments on the second floor because it necessitated climbing the stairs, which was difficult for her on account of advanced age and a shortness of breath upon exertion; while, on the other hand, she testified that she intended to take care of the lawn and the furnace. Nonetheless, it was for the' trier of fact to weigh the evidence and determine its probative value. In any event, the choice of apartments was for her to make. If an owner has several properties available, the decision as to- which one he will occupy is for him to make. Downs v. Karsh (D. C. Mun. App.), 33 A. (2d) 620. In plaintiff’s favor is the testimony of Mrs. Zimmerly, tenant in apartment No. 3, that in the early part of 1942 plaintiff endeavored to obtain the furniture from her in order to furnish apartment No. 2, but that she (Mrs. Zimmerly) did not care to rent apartment No. 3 unfurnished. The result was that plaintiff did not move the furniture. Instead she raised the Zimmerlys ’ rent $2.50 per month, and they remained in apartment No. 3, continuing to use plaintiff’s furniture. Thus it appears that plaintiff desired to move into this apartment more than a year before she served notice upon defendant to surrender possession of it and before she had rented it to him or had any disagreement with him. It further appears that shortly after plaintiff received word that the Zimmerlys were moving out and her furniture would be available she served a notice upon •defendant to vacate. Her desire, to move back into apartment No. 2 is further emphasized by the fact that before she rented it to defendant and while she was attempting to obtain all her furniture in order to move into it, she had a cot, equipped for use, moved up from the basement and placed in the apartment. Plaintiff testified that she wanted to make her home there; that her furniture was deteriorating and she wished to make use of it; that her lawn had been practically .destroyed and she wanted to take care of it. It may well be that she was not physically capable of doing what she contemplated. However, that was for the .trier of fact to consider on the issue of good faith.

. “ ‘On the issue of good faith, it is proper for the court to consider all the facts and circumstances which the owner appears to have regarded as important in forming his desire to occupy the housing accommodations himself.’ (Bumgarner v. Orton (Cal. Super.), 146 P. (2d) 67, 69.

“. . . As the court said in Hoyt v. D. & I. R. R. Co., 103 Minn. 396, 400, 115 N. W. 263, 264:

‘ ‘' Good faith, like fraud, is hardly capable of exact definition. It is a question of fact, which depends upon many circumstances and conditions. It is generally a question for a jury to determine.’

“On the issue of good faith under OPA rent regulations, all the circumstances must be taken into consideration in determining whether a landlord is ‘merely attempting to juggle his property for profit, or legitimately requires it to live in.’ Gould v. Butler (D. C. Mun. App.), 31 A. (2d) 867, 879; Shaffer v. Bowes (D. C. Mun. App.), 31 A. (2d) 690; and Bumgarner v. Orton (Cal. Super.), 146 P. (2d) 67; Downs v. Karsh (D. C. Mun. App.), 33 A. (2d) 620; and Colwell v. Stonebraker (D. C. Mun. App.), 31 A. (2d)-866, supra.”

Defendant’s motion for a finding in his behalf at the close of plaintiff’s evidence presented to the trial court purely a question of law as to whether or not her evidence made out a prima facie case. In sustaining defendant’s motion on the ground that plaintiff’s evidence did not make out a prima facie case and entering judgment in favor of defendant the trial court erred, since plaintiff’s evidence fairly tended to establish her cause of action.

Although the only point raised by defendant in the trial court was that plaintiff had not proved good faith, he now urges two additional points to sustain the judgment — that Margaret Nofree was not the proper party plaintiff and that two prior judgments were res judicata of this action. Neither of these purported defenses having been raised or considered by the trial court, they cannot he raised here for the first time,

For the reasons, stated herein the judgment of the municipal court of Chicago is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

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


author: Mr. Presiding Justice Kiley

text:
    George Agatucci, Appellee, v. George Corradi et al., Defendants. George Corradi et al., Appellants.
    Gen. No. 43,136.
    Heard in the third division of this court for the first district at the October term, 1944.
    Opinion filed November 7, 1945.
    Released for publication November 27, 1945.

      Chester D. Kern and Otto M. Hamer, both of Chicago, for appellants.
    Barney L. Hollowick and David S. Chesrow,- both of Chicago, for appellee.
   Mr. Presiding Justice Kiley

delivered the opinion of the court.

This' is an equitable action founded on the alleged fraud and deceit of the individual defendants in the purchase of plaintiff’s stock in the Chicago Heights Transportation Company. The proceedings were begun in the Circuit Court of Peoria County and were transferred to Cook County on motion of the South Suburban Safeway Lines. The decree based on a master’s report awarded plaintiff $5,701.00, reimbursed him for the master’s fees and taxed the costs against the defendants. All defendants éxcept the South Suburban Safeway Lines have appealed.

The Individual defendants, Corradi and Petronio, were brothers-in-law. They and the plaintiff were each owners of one-third of the stock of the Chicago Heights Company from 1928 to March 12, 1940, when they became the owners of plaintiff’s stock. During most of that period the three men each took an active interest in the operation of the business, which was the motor transportation of passengers. They alternatively drove busses and worked in the garage. In 1938 plaintiff went to Peoria to engage in the grocery business with relatives. He returned to Chicago Heights and the business in the Spring of 1939. July 20th following he ag’ain went to Peoria and thereafter was not engaged in the business.

January 6, 1939, plaintiff, Corradi and Petronio made an agreement specifying their relations as stockholders. Among other thing's it provided that in the event of a sale ojf the interest of one, the others would have a ten day option to purchase. July 1, 1939, plaintiff gave notice to Corradi and Petronio of his intention to sell. Neither one exercised the option.

■ The agreement also provided that should any of the owners engage in outside business, he could place in his stead any able, competent worker approved by the other owners, to carry out his duties and to receive the same compensation as others performing like duties. Plaintiff, Corradi and Petronio drew the same salaries. July 20,1939, before leaving for Peoria, plaintiff executed an assignment of his stock certificates to his son-in-law Co stabile for a purported consideration of $9,000.

At the annual meeting of the Company in February 1940, plaintiff offered to sell his stock to Petronio for $7,000. The offer was refused. Early in March, however, Petronio importuned plaintiff to sell and finally agreed to buy at the $7,000 figure. Costabile reassigned the certificates to plaintiff who sold them to Corradi and Petronio under an escrow agreement wherein the stock was pledged to secure payment installments. Thereafter, plaintiff resigned as director of the Company in a transaction wherein he was paid in full for the stock.

March 21, 1940 the physical assets of the Chicago Heights Company were sold to South Suburban Safeway Lines, Inc. under a sale, and lease and sale, arrangement for $40,000. Under this agreement it transferred its rights under its certificates of convenience and necessity and its franchises, subject to their being restored to it should the South Suburban Company default in monthly payments of rent ’ \ Should there be no default in the 56 monthly payments of “rent”, the transfer of these rights was to become absolute. The agreement was made between the Companies and executed by the Chicago Heights Company through Corradi, as President, and Petronio, as Secretary. Plaintiff had no knowledge of this transaction until after its consummation.

The question is whether Corradi and Petronio as officers of the Company violated a duty to plaintiff, as stockholder, to disclose to him, before buying his stock, information of the pending sale. Plaintiff alleges and the master and trial court found that Corradi and Petronio owed plaintiff the duty and violated it by deliberately hiding information from him.

The award of $5,701 represents the difference between the $7,000 paid plaintiff by Corradi and Petronio and $13,333.33, being the value of the stock measured by the sale price, less certain deductions. The deductions were on account of liabilities of the Company shown in an affidavit executed pursuant to the Bulk Sales Act. There appears to be no dispute about the amount awarded.

Defendants, who are the appellants, moved to strike and dismiss the complaint as insufficient in equity. The order denying the motion is assigned as error. They say that though discovery and accounting were prayed, neither was needed under the circumstances; that plaintiff did not offer to do equity in that he did not tender back the $7,000 to Corradi and Petronio or ask to be restored to his position as stockholder; and that the action is merely a legal demand for money.

It is true that neither an accounting nor discovery were needed. An injunction was sought, but became unnecessary when an agreement between the parties effected the same result. These considerations, however, are not important in view of our conclusion on the question whether or not an equitable cause of action was set out in the complaint.

The substance of the allegations taken as true, to test the complaint, is that Corradi and Petronio contemplated the sale of the Chicago Heights Company business when they purchased his stock; that he knew nothing of the proposed sale; that they deliberately withheld the information; that he would not have sold for $7,000 had he known the facts; and that he should have the real value of his stock as determined by the sale price of the business.

Defendants rely upon the general rule that though they, as directors and officers of the Chicago Heights Company, were trustees for the stockholders as a body in respect to its business and property, they were not plaintiff’s trustee with respect to his stock and were free to purchase his stock, being liable only for actual fraud. Hooker v. Midland Steel Company, 215 Ill. 444, and Bawden v. Taylor, 254 Ill. 464. The actions in the cases cited were to set aside the sales of stock, and the facts are different from those in the instant case. In the Hooker case the court said that mere failure to disclose information affecting the value of stock in the absence of actual fraud would not avoid a purchase thereof by a director. In the Bawden case the court said plaintiff could sustain his claim only by showing that false representations were made. The general rule was applied by this court in Wood v. MacLean Drug Co., 266 Ill. App. 5, and in Anchor Realty & Invest. Co. v. Rafferty, 308 Ill. App. 484.

The rule followed in this State is called the majority rule in a division of authority on this question. Fletcher Cyc. Corp. Perm. Ed. Vol. 3, p. 606. Under the minority rule, adverted to in Wood v. MacLean Drug Co., by reference to a Georgia case, directors are considered trustees for individual stockholders with respect to their stock. Massachusetts and Michigan also follow the majority rule. In those states on authority of Strong v. Rapide, 213 U. S. 419 an exception to the rule is recognized. Buckley v. Buckley, 230 Mich. 504; Gammon v. Dain, 212 N. W. Rep. (Mich.) 957; and Goodwin v. Agassiz, 283 Mass. 358. “Special circumstances” such as an assured sale enhancing the value of the stock, known to the officers but not to the stockholder and not ascertainable from the books, modify the “mere failure to disclose” doctrine. Buckley v. Buckley.

There appears to be no “special circumstance’’ , case in Illinois, although the exception was noted in Wood v. MacLean Drug Co. We believe, however, that the Michigan and Massachusetts cases referred to are respectable precedents. We shall follow them. We think this case presents an “assured sale” case with the facts known to Corradi and Petronio and wrongfully held by them from plaintiff in violation of their trust. We find that the complaint stated an equitable cause of action.

Plaintiff’s action is not to rescind the sale of stock. His case rests upon the continuation in force of the .contract of sale. Under these circumstances it was not necessary for plaintiff to offer back to Corradi and Petronio the $7,000 which he received under the sale. We need not, for the reasons given, consider the point that fraudulent statements or misrepresentations sufficient to sustain a suit for fraud and deceit were not alleged.

It is argued that the findings that Agatucci was the owner of the stock “at all times between July 20, 1939 and March 11, 1940” is “against the manifest weight of the evidence. ’ ’ The record shows that though a purported assignment was executed by plaintiff to Costabile, defendants dealt with plaintiff as real owner throughout the transaction. It is also contended that the finding that Corradi and Petronio knew the sale w;as “going through” is “against the manifest weight of the evidence.” The South Suburban Safeway Lines in its answer admits that its negotiations were pending “on or about March 11, 1940.” There was evidence of conversations with Petronio two or three months prior to the contract between the Companies with respect to its' subject-matter. February 10, 1940, South Suburban Safeway Lines made a written offer to the Chicago Heights Transportation Company, which was received by Petronio. February 24, 1940 a response and counter offer were made on behalf of the Chicago Heights Transportation Company after a conference between Corradi and an attorney.

The question of manifest weight is not the limit of our inquiry where a master has heard the evidence. We are to decide whether the decree is proper under the law and evidence. Jones v. Koepke, 387 Ill. 97. We believe the material conclusions of the master were correct and that sufficient findings were justified, and made, to support the conclusions. We need not consider immaterial findings and conclusions.

Defendants complain that the Chicago Heights Company should have been dismissed- from the action. There are no decretal orders against the Chicago Heights Company. When the trial court ruled on the motion the evidence had not yet been taken and it was not clear what the relation of the Chicago Heights Company was in the transactions. We see no merit to defendant’s contention.

The agreement to sell the business was between the Chicago Heights Company and the South Suburban Company. The contract payments were to be made to the former. No payments were to be made under the contract to Corradi and'Petronio. The decree orders Corradi and Petronio to pay plaintiff and also orders the South Suburban Company to pay him out of the funds in its possession belonging to them. They argue that the money held by the South Suburban Company is not due them, but is due the Chicago Heights Company. They say that plaintiff should properly seek to regain his position as a stockholder, so as to be able to sue the Chicago Heights Company for his share of the proceeds of the sale. They further say that, since plaintiff has abandoned the idea of rescinding the sale, he cannot regain that position. The South Suburban Company is agreeable to paying whomever the court decides.

Corradi and Petronio actually own all of the stock and the Company exists for the purpose only of receiving payment under the contract. It is true that under the contract in the event of default in payments of monthly “rent”, the Chicago Heights Company was to be revested with its certificates of convenience and necessity, etc. This fact is-no obstacle to our findings. In arriving at the amount plaintiff recovered, there was deducted the amount of the Company’s liabilities as shown by a Bulk Sales Act affidavit made in the transaction. Thus the Company was rendered merely a conduit for the payments to Corradi and Petronio. They say that inquiry at the trial may have disclosed further - liabilities of the Company. The record shows they were given an opportunity to make proof of further liabilities but refused to do so.

Corradi and Petronio violated their trust. Had they sold their stock instead of the business to South Suburban Safeway Lines, the decree would properly direct the latter to pay plaintiff the moneys due Corradi and Petronio. The Chicago Heights Transportation Co. in its circumstances should not be permitted to stand between plaintiff and justice. In reality Corradi and Petronio were the Company.

Under these circumstances and all the facts in this case, we agree with plaintiff that no injustice will result to the Chicago Heights Company or to Corradi and Petronio from the execution of the decree as it now stands. We think it is proper under the law and' evidence.

For the reasons given the decree is affirmed.

Decree Affirmed.

Burke, J., concurs.

Lewe, J., took no part.