text:
    Alice L. Ash, Appellant, v. Millard C. Ash, Appellee.
    Term No. 45,012.
    Heard in this court at' the October term, 1945.
    Opinion filed January 7, 1946.
    Released for publication February 7, 1946.
    Jacoby, Patton, Manns & Coppinger, of Alton, for appellant; V. M. Jacoby, of Alton, of counsel.
    C. C. Ellison, of Alton, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is an action for divorce brought by Alice L. Ash, plaintiff appellant (hereinafter designated as plaintiff), against her husband Millard C. Ash, defendant appellee (hereinafter designated as defendant) charging said defendant in her complaint with habitual drunkenness for the space of two years. The case was heard before the court, without a jury, and after taking the cause under advisement for a time, the court found the issues in favor of defendant and dismissed the complaint for want of equity.

It is alleged by plaintiff that the court erred in entering up and approving the decree, and that the finding of the court is contrary to the law and the evidence.

Plaintiff testified, with reference to the drinking habits of defendant that he used intoxicating liquors for about 24 years, over which period of time he has averaged becoming intoxicated about every week-end, and always become intoxicated on holidays. Lucy E. Wilson, formerly a neighbor, testified “He has drank all the time I have known him. He become intoxicated on an average of once a week. For the past year or two I have seen him intoxicated on an average of at least once a week.” Mrs. Arthur Miget, a sister of plaintiff, testified that in the period between 1934 and 1940 he drank every day and became intoxicated once a week. Mrs. Alice Lengacher, mother of plaintiff, testified that defendant usually got intoxicated over week-ends. She thought that he got intoxicated every week-end, which condition had existed for over 24 years. Charlene LaVerne Ash, daughter of the parties, a senior in high school testified, that defendant became intoxicated at least once a week, and that that had extended as long as she could remember; that when she was younger, she would be sent by her mother to the tavern to bring him home and that on those occasions he would be standing at the bar drinking and would be intoxicated. Other witnesses testified to his conduct in his home, his coming home apparently intoxicated and vomiting on the floor, and his conduct in driving the car in a reckless manner, when apparently under the influence of liquor.

In his own behalf defendant testified, that he had drank beer for 24 years, but that there were only several times in the last five years that he had been intoxicated ; that in the preceding 20 years he had only been under the influence of liquor once a year. In characterizing his drinking habits, he testified that no one ever had to take him home; he never had been carried home and never been escorted home.

Defendant produced as witnesses in his behalf, Jack Battuello, owner and operator of “Jack’s Tavern,” where defense testimony showed defendant spent a large part of nearly every evening, a waitress at the tavern and five frequenters of the place who visited it from three to five times a week. Their estimate of his drinking varied from three or four beers to as many as eight or nine in an evening. All testified that they had never seen him drunk.

As a result of his drinking habits, as testified to by plaintiff, he was quarrelsome; ordered his wife out of their home; used much profane language; called her opprobrious names, a pot, a whore, a slut; had come home on one occasion when she was entertaining guests and vomited on the floor and neglected his family generally.

In the case of Richards v. Richards, 19 Ill. App. 465, at page 469, the court said, “The reason why the law makes habitual drunkenness a ground for divorce is not alone because it disqualifies the husband or wife from attending to business, but in part, if not mainly, because it renders the person addicted thereto unfit for the duties of the marital relation, and disqualifies such person for properly rearing and caring for the children born of the marriage. In Burns v. Burns, 13 Fla. 369, the court say, ‘The charge of habitual intemperance can only refer to a persistent habit of becoming intoxicated from the use of intoxicating drinks, thus rendering his presence in the marriage relation disgusting and intolerable.’ ”

This record can hardly be read, without coming to the conclusion that the conduct of defendant “rendered his presence in the marriage relation disgusting and intolerable.”

We also are of the opinion that the record amply shows that defendant was guilty of habitual drunkenness for the space of more than two years. According to Bouvier, and his definition has been approved by many Supreme and Appellate Court cases in this State, in which habitual drunkenness has been involved, an habitual drunkard is a person given to inebriety or excessive use of intoxicating drink who has lost the power of will by frequent indulgence to control his appetite for it. Richards v. Richards, supra; Licher v. Licher, 215 Ill. App. 441; Youngs v. Youngs, 130 Ill. 230; Garrett v. Garrett, 252 Ill. 318.

According to his witness, Jack Battuello, who operated the tavern since June 1, 1944, defendant was in his place of business every day since he began operating the tavern. According to the witness, Lucy Tuetkin, a waitress in the tavern, called for defendant, he drank eight or nine beers in an evening, which would indicate that he had lost the power of will by frequent indulgence to control his appetite for drink.

The testimony of these witnesses produced by defendant was negative in its character, as to defendant’s drunkenness and we are inclined to hold insufficient as against the positive testimony of witnesses who testified affirmatively to his habitual drunkenness for a number of years greatly in excess of the period required by the statute.

It is the rule that the finding and decree of a chancellor, where he had the opportunity of seeing the witnesses and hearing them testify should not be disturbed on appeal, except where the evidence clearly preponderates against such finding and decree. Jones v. Jones, 124 Ill. App. 201, 204; McCarthy v. McCarthy, 219 Ill. App. 369, 386; Hall v. Pittenger, 365 Ill. 135, 6 N. E. (2d) 134, 135; Megahy v. Megahy, 320 Ill. App. 362, 51 N. E. (2d) 75.

Yet after a careful review of the entire evidence in the present case, we have reached the conclusion that the finding and decree of the lower court is against the manifest weight of the evidence and should be reversed.

For the reasons herein indicated the decree of the city court of Alton is reversed and remanded, with directions to enter a decree for divorce in favor of plaintiff.

Reversed and remanded with directions.

Culbertson and Bartley, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Culbertson

license: Public Domain

text:
    Henry Loeb, Appellant, v. Herbert Corrie, Appellee.
    Term No. 45,010.

      Heard in this court at the October term, 1945.
    Opinion filed January 14, 1946.
    Released for publication February 14, 1946.
    Sumner & Lewis, of Lawrenceville, for appellant.
    Ben H. Townsend, of Mt. Carmel, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Lawrence county, ag’ainst plaintiff appellant, Henry Loeb (hereinafter called plaintiff), and in favor of the defendant appellee, Herbert Corrie (hereinafter called defendant). This cause was tried before the court, without a jury.

This case arose out of an accident which occurred on the 17th day of August 1943, shortly after 10:00 o’clock in the morning, when the defendant was engaged in operating a tractor and mower in mowing a certain section of State Highway No. 1, which section extended southward from an intersection just north of Healey’s Market, in Lawrence county, State of Hlinois. The tractor involved in the accident was a Farmall 20, and was about ten feet long and eight feet wide from outside of tire to outside of tire on the rear wheels. Attached to the. tractor, at the back, was a Massey-Harris mower, which was bolted by two bolts and two iron strips, or stirrups, to.the draw bar on the rear of the tractor, making the connection of the mower to the tractor, rigid, the two bolts on the draw bar being twenty to twenty four inches apart.

The defendant at that time had proceeded with his tractor, to which was attached the mower, along the east side of the highway, up to the intersection, and then, for the purpose of having his tires looked after, had crossed the intersection to a garage situated just north of the intersection. After leaving the garage he crossed to the west of the pavement to come south, and in doing so he had to come past a point known as “Healey’s Market,” which was situated on the west side of the highway at about 100 feet south of the intersection. Along the west side of the highway from the intersection south to a point approximately 25 feet south of Healey’s Market, the shoulder consisted of gravel and cinders and there was no mowing to be done until a point was reached from 25 to 35 feet south of the market. The market was situated about 18 feet from the paved portion of the highway.

On the morning of the accident in question, the plaintiff and his son-in-law were driving north on the highway, and upon coming opposite Healey’s Market, pulled their car off on the shoulder on the east side of the pavement and crossed over to Healey’s Market to purchase some melons. The defendant, as he left the garage north of the intersection, had the sickle bar of his mower in what is called the “raised position,” and as he came south with the tractor and mower he was driving with his left wheels to the east of the black center line of the pavement about 3 feet, and as he approached the part of the pavement in front of the market he saw the plaintiff and his son-in-law come from the market toward the pavement. Defendant threw his tractor out of gear and came almost to a stop so as to permit plaintiff and his son-in-law to cross the pavement ahead of him, but instead of crossing ahead of the tractor, the plaintiff and his son-in-law stopped some 6 or 7 feet away from the pavement, and upon seeing them do so, the defendant threw his tractor into gear and was proceeding slowly south on the pavement. It appears that at the time the plaintiff was standing on the west shoulder of the road, and that he had two large cantaloupes, one in each hand, which he was holding with his hands raised upward and about even with his shoulders. The son-in-law of the plaintiff appears to have then been standing about even with him, but north by a few feet. As the tractor and mower came down the pavement, the sickle bar extended over the pavement west, about 2 or 2% feet, the east wheels of the tractor then being east of the black center line of the pavement about 3 feet. The sickle bar was in the raised position so that the outer end of the bar was raised above the ground 2 feet, or more. Upon the end of the sickle bar and at right angles to it, there was a parting board, 18 inches long and 7 inches high, with a rolled top 2 or 3 inches wide.

Plaintiff testified that before he got to the pavement, with the intention of crossing same to return to his car, that he looked around to see whether there was a car coming, and that he observed the tractor coming from the north, going south, and that he stopped from 6 to 7 feet on the west side of the pavement, waiting for the tractor to come past. As the tractor got even with plaintiff and was about to pass him, plaintiff contends that he was looking at Mr. Corrie sitting on the tractor and driving it, and Mr. Corrie was looking at the plaintiff, “just looking face to face, and that all at once I was down on the ground, and I never noticed a sickle. I would say he turned toward me, going into that fruit stand, because, otherwise, if he had went straight, he would have missed me.” The other testimony seems to rather uniformly be that as the tractor came opposite or about directly in front of plaintiff, that plaintiff stepped toward the pavement, and was struck by the sickle bar, which caused a fracture of his left leg just below the knee. It appears from the evidence that the defendant immediately applied his brakes and that he stopped within a foot, or less. Harlan Corrie, an uncle of the defendant, who was on the tractor at the time the accident happened, testified that as they got to the market he was watching for traffic to come from the east, or west, or north, or south, and that he saw the plaintiff and his son-in-law come from the market towards the road, and that they walked out fairly close — not too close, and Herbert stopped, or nearly stopped, and just as he started up, the plaintiff herein stepped out and started ahead, and stepped east toward the paved part of the highway, and that he “just stepped out in front of the end of the bar.” Defendant further testified that immediately after he struck the plaintiff and while the plaintiff was on the ground, and before they picked him up, that plaintiff said, “Oh, it’s my fault; it’s my fault.” The making of this statement plaintiff denies. We believe that the foregoing is a fair summary of the evidence as it was produced on the trial of this cause before the court, without a jury.

It is contended on this appeal that the judgment of the court is contrary to the manifest weight of the evidence, and that the judgment of the trial court should be reversed, and that a judgment should be entered in favor of the plaintiff in a sum not less than $3,000 or more than $5,000. It would appear to us from an examination of the record in this case that an issue of fact was presented to the trial judge who heard this case and tried same without a jury, and his finding is entitled to the same weight as is a verdict of the jury, and will not be disturbed by an appellate tribunal, unless it is manifestly against the weight of the evidence (Moore v. David J. Molloy Co., 222 Ill. App. 295, 298; People v. C. & E. I. Ry. Co., 258 Ill. App. 535, 540; McCracken v. First Nat. Bank of Wheaton, 204 Ill. App. 20, 21; Hankins v. Colley, 106 Ill. App. 522).

In giving consideration to the question of whether or not the finding of the trial court is contrary to the manifest weight of the evidence, a review-' ing court must have regard for the better opportunity of the trial court to determine the facts by reason of its opportunity to see and hear the witnesses (Marble v. Estate of Marble, 304 Ill. 229, 232; City of Quincy v. Kemper, 304 Ill. 303, 307).

There was in this case a positive burden upon the plaintiff to prove by a preponderance of the evidence the negligence of the defendant, as charged, and his own freedom from contributory negligence (Dyer v. Talcott, 16 Ill. 300; Abramovitz v. Chicago City Ry. Co., 172 Ill. App. 208, 211; Ashland Auto Garage v. Chicago Rys. Co., 183 Ill. App. 207, 208; LeHigh Valley Transp. Co. v. Cook, 138 Ill. App. 405, 407).

The evidence in this case persuades us, and we so hold, that the judgment of the court in this case is not against the manifest weight of the evidence, but the evidence, on the contrary, gives abundant support to the finding and judgment of the trial court in favor of the defendant.

There being no error in this case and the judgment being right under the law and the evidence in this case, the same is hereby affirmed.

Judgment affirmed.

Stone, P. J., and Bartley, J., concur.


author: Justice Culbertson.

text:
    James A. Blunk, Appellee, v. Rose M. Blunk, Appellant.
    Term No. 4,508.
    Heard in this court at the October term, 1945;
    opinion filed January 7, 1946;
    released for publication February 7, 1946.
    Jacoby, Patton, Manns & Coppinger and O’Neill & Davey, for appellant; Green & Hoagland, for appellee; Kenneth F. Kelly, of counsel.
   Opinion by

Justice Culbertson.

Not to be published in full.


author: Mr. Presiding Justice Kiley

text:
    Lorea M. Pope, Appellee, v. Frederick A. Pope, Appellant.
    Gen. No. 43,322.
    Opinion filed February 13, 1946.
    Released for publication March 8, 1946.
    Hadley & Leren, of Wheaton, and Walter B. Prendergast, of Chicago, for appellant; Charles W. Hadley, of Wheaton, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Kiley

delivered the opinion of the court.

This is an appeal from an order dismissing defendant’s petition for modification of the alimony provision of a divorce decree. No brief has been filed in this court by plaintiff.

At plaintiff’s suit the parties were divorced by a decree entered September 22, 1942. The court found in the decree that the parties had by agreement settled their “marital rights” and it approved the agreement. The court further found that the circumstances justified defendant’s paying plaintiff $100 a month alimony and ordered him to do so.

April 28,1944, defendant filed his petition asking for a reduction of the alimony because of changed circumstances. A stipulation of the facts for determination of the question of reduction was presented to the court. The agreement referred to in the decree provided among other things that the defendant should pay the plaintiff $100 per month and her attorney’s fees. The trial court denied the prayer of defendant’s petition on the ground that the order for alimony was agreed to by the parties and no reservation made for a later modification.

Whether the agreement was or was not incorporated in the decree and regardless of any reservation for the purpose in the decree, the court had power to modify the alimony provision. Herrick v. Herrick, 319 Ill. 146; Maginnis v. Maginnis, 323 Ill. 113; Adler v. Adler, 373 Ill. 361; Miller v. Miller, 317 Ill. App. 447. For a more comprehensive treatment of this question see the opinion, filed contemporaneously herewith, by Mr. Justice Lews of this court in Jacobs v. Jacobs, 328 Ill. App. 133.

For the reasons herein given the order of the Superior Court is reversed and the cause is remanded for determination of the issue whether the alimony provision should be modified.

Order reversed and cause remanded.

Lewe and Burke, JJ., concur.


text:
    Rae Stein, Appellee, v. La Salle National Bank, as Executor and Trustee Under the Last Will and Testament of Albert Leo Farrell, Deceased, Appellant. Jerome Corbett et al., Appellees.
    Gen. No. 43,432.
    Opinion filed February 13, 1946.
    Released for publication March 8, 1946.
    Brown & West, John J. Enright, Jr. and John J. Kelly, all of Chicago, for appellant; Isidore Brown, of Chicago, of counsel.
    Homer F. Carey, for certain minor appellees; Homer F. Carey, of counsel.
    Black & Beermann, of Chicago, for appellee; Benjamin H. Black, of Chicago, of counsel.
   Mr. Presiding Justice Kiley

delivered the opinion of the court.

The original complaint in this, action sought the construction of a provision of a will. The decree was entered upon a second supplemental complaint which sought approval of an agreement between beneficiaries of a spendthrift trust. The decree was in plaintiff’s favor and the Trustee Bank has appealed.

Albert Farrell died in Chicago, September 17, 1943, leaving a will in which the Bank was named executor and trustee. After the will was admitted to probate and letters. of administration issued, the Bank took possession of the assets of the estate amounting to about $10,000 net in personal property. In one provision of the will plaintiff was named legatee of personal property and in another she was made beneficiary of a trust with Jerome and William Corbett, minors, named contingent remaindermen.

The testator made a legacy to plaintiff of “all of my household furniture, furnishings, automobiles, jewelry and all other of my personal, domestic and household articles; . . . .” Following this bequest there were nominal bequests to the testator’s sisters. The rest of the testator’s property was given in trust to the Bank. The Bank was directed to pay to plaintiff, “a friend,” $50.00 per month from the income or principal so long as she should live. The minors from whom a guardian ad litem was appointed were made contingent beneficiaries of the trust. Their interests were to vest upon plaintiff’s death, or if she should die before the testator, then upon the testator’s death. A spendthrift provision covered the interest of the beneficiaries.

- Plaintiff sued for a construction of the legacy provision, claiming that under it, properly construed, all the testator’s personalty was hers. Since the entire estate was personal property, if plaintiff succeeded in obtaining such a construction, there would be nothing left for the trust and the interest of the minors precluded. According to subsequent pleadings, negotiations were had with the view of compromising plaintiff’s action in the best interests of the beneficiaries. They allege the possibility of plaintiff’s success to the exclusion of the minors and her offer to take two-thirds of the corpus of the trust and give the minors one-third. They set forth the approval of the parents and of the minors of the offer and their urging of its acceptance. They alleged the fears that plaintiff 51 years old would, during her lifetime, even if her suit failed, exhaust the trust through the monthly benefits, leaving nothing for the minors. All the beneficiaries in these pleadings complain of the Bank’s selfish objection to the agreement.

The second supplemental complaint repeated substantially all of these matters and asked for termination of the trust, authority to accept the offer of the minors on the basis of plaintiff’s affection for them and for direction to the Bank to perform in accordance with this agreement.

The court found that it had jurisdiction; that all persons in interest “in being” and “not now in being” were represented; that the agreement was desired by all the beneficiaries and was in the best interest of the minors and that it was probable that the monthly payments to plaintiff from the trust would exhaust it in her lifetime to the detriment of the minors. The court granted the relief prayed in the second supplemental bill.

The decree, if affirmed, will have the effect of terminating the spendthrift trust.

The trustee has appealed and we believe it had the obligation and right to maintain the trust, if possible, in the trial court and here. It is not a mere stakeholder under the will in question. It is trustee under a spendthrift trust with definite instructions.

The testator plainly intended that plaintiff should have only $50 per month during her life. He foresaw that the income from the trust might not produce the monthly payments. To meet that contingency he subjected the corpus so far as necessary to provide the $50 payment. He thus recognized that the corpus might be diminished to the detriment of the minors’ remaindermen. It is plain that he intended that she should, during her life, be secure to the extent of the $50 payments. He imposed restraints on her interest to insure that security. He vested title in the trustee to insure the fulfillment of the intention.

Courts of this State have been careful to protect the trust schemes of testators. They have asserted the rights of testators to select beneficiaries and prescribe the conditions of bounty within legal limits. The United States Circuit Court of Appeals for the 7th District said in Commissioner of Internal Revenue v. Blair, 60 Fed. (2d) 340, that Illinois courts have gone farther than those of most States to uphold spendthrift trusts.

Since plaintiff is alive the trust is active. The effect of the decree is not to alter the management of the trust so as to carry out the trust terms. Its effect is to dissolve the trust. The design of the agreement is to oust the trustee of legal title in direct opposition to the testator’s intention. A case is not presented here of unforeseeable circumstances which the court can reasonably say would have changed the testator’s intention had they been foreseen by him. We cannot say that, faced with the circumstances presented by plaintiff and the minors, the testator would have made a disposition such as is provided in the decree. We believe that the situation presented by the pleadings would rather have confirmed his original intention. It is true that the minors’ beneficiaries will benefit, probably better under the agreement than under the will. This consideration, however, is by no means controlling. No necessity has been shown here for the intervention of a court of equity. Under these circumstances, we feel certain that the decree is erroneous. Stephens v. Collison, 274 Ill. 389; Rhoads v. Rhoads, 43 Ill. 239; Gary v. Gary, 309 Ill. 330; Outhet v. Follansbee, 218 Ill. App. 512; Northern Trust Co. v. Thompson, 336 Ill. 137; Bogert on Trusts and Trustees, Vol. 4, p. 2932 and 2934; Anderson v. Williams, 262 Ill. 308; Mohler v. Wesner, 382 Ill. 225.

Plaintiff and the guardian rely upon Wolf v. Uhlemann, 325 Ill. 165 to support their contention that the trial court had power to approve the settlement beneficial to the minor where all beneficiaries agree and only the trustee objects. The proceeding here is patterned after the one in that case. There, however, the court approved a compromise of threatened litigation between members of a family over a complex and involved will. In this case there is neither a family dispute nor a complex and involved will. There is no question therefore of subverting a trust to keep a family from being torn asunder. Anderson v. Anderson, 380 Ill. 488.

Defendant agrees that in a proper case a court of equity has power to authorize the compromise and settlement of a minor’s litigation. We agree with it that this is not a proper case.

Other cases cited by the guardian simply state the rule that income from a spendthrift trust may be subjected to the support of a beneficiary’s wife and children. These cases are not relevant.

The decree is reversed and the cause is remanded with directions to dismiss the cause for want of equity.

Reversed and remanded with directions.

Lewe and Burke, JJ., concur.


author: Mr. Justice Burke

text:
    Margaret P. Condy, Appellee, v. Louis H. Condy, Appellant.
    Gen. No. 43,383.
    Opinion filed February 13, 1946.
    Released for publication March 8, 1946.

      Kinne, Scovel & Robson, of Chicago, for appellant; Harold F. Scovel, of Chicago, of counsel.
    Jerome L. Fels, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

Margaret Palmer and Louis H. Condy were married at Joliet, Illinois, on April 19,1913. Two children were born of the marriage, namely, Louis Henry and Betty Margaret. The parties separated on July 1,1932. She filed a complaint for divorce in the circuit court of Cook county charging wilful desertion. He was personally served with a writ of summons and was defaulted. On March 16, 1934 a decree was entered dissolving the. bonds of matrimony, ordering him to pay all accrued and outstanding bills which the parties jointly owed; that he pay to her “one-half of all money, tax warrants or other things of value which he shall receive after January 1, 1934, in payment of accumulated and unpaid back salary due to him from the Board of Education of the City of Chicago as a teacher in the public schools of said city; ’ ’ that he pay to her “one-half of his salary earned and received as a teacher or employee of the public schools of the City of Chicago, Illinois, as long as he is so employed, and in the event of the termination of such employment, to pay one-half of his gross income to said complainant throughout her life or so long as she remains unmarried;” that he pay all of the general real estate taxes due for the years 1930 and 1931 on the real estate at 4615 North Drake avenue, Chicago, then owned in joint tenancy by the parties; that he pay certain indebtedness then owing to his father and save plaintiff harmless from all liability to his (defendant’s) father; that he join in a conveyance of the home owned in joint tenancy by the parties so as to vest title solely in plaintiff; that he carry at all times during his life at least $2,500 of life insurance upon his life in a policy naming plaintiff as beneficiary, and another policy of $2,500 naming the children as beneficiaries; that he pay the premiums upon the policies; that he refrain from encumbering the policies; that he pay a certain promissory note theretofore executed by him payable to the order of the father of plaintiff and then held in the estate of George Palmer, deceased; that she have the sole care, custody and control of their minor children, with the right in him to visit at reasonable times and places, she to support, maintain and care for the children during their minority, and she was ordered to accept the payments and the performance of the undertakings in full settlement and payment of all claims and demands of every nature on account of her right to support and the right to support of the children. It was further decreed that the memorandum of agreement entered into December 27, 1933 between the parties be incorporated in the decree as fully as though it had been a part thereof. The report of the proceedings on the hearing of the divorce case shows that the agreement, which was introduced into evidence, contains substantially the same provisions as the decree.

On August 7,1935, approximately a year and a half after the entry of the decree, defendant filed a petition alleging, among other things, that the execution of the agreement and the entry of the decree were procured through fraud, duress and ignorance of the defendant. Plaintiff answered the petition. On November 12, 1935, after the presentation of testimony and argument of counsel, an order was entered by consent, which, among other things, provided that the decree of divorce was properly entered; that both parties were fully cognizant of the terms of the agreement embodied in the decree; that they entered into the agreement voluntarily; that the agreement embodied in the decree and the provisions of the decree are fair, just and equitable; and that except as modified the decree should in all respects stand unchanged. During the course of the proceeding plaintiff agreed to waive the provisions of the decree and of the agreement requiring him to pay premiums on a life insurance policy, in consideration of his assigning the policy to her. The order so provided and defendant has since received the benefits of the agreed modifying order. This was the only change in the original decree.

In June 1943 defendant filed another petition attempting to modify the decree and agreement for alleged change of circumstances in that each child had reached majority and was self-supporting and again asserting fraud, duress, misrepresentation, ignorance and unfairness with regard to the decree and the alimony agreement incorporated therein. On June 21, 1943, after a hearing, an order was entered denying any part of the relief prayed for. On October 5, 1944 plaintiff filed an amended and supplemental petition praying for a rule on defendant to show cause why he should not be held in contempt of court. The petition, after giving him credit for certain payments made since September 1943, alleged that there was due her from him $1,538. He filed an answer stating, among other things, that he had been advised by counsel that the portion of the decree providing for future alimony was void and unenforceable for uncertainty and that it would not support an order finding him in contempt of .court for failure to pay alimony. Thereafter the parties stipulated to submit the case to trial as an agreed case, as provided in sec. 85 of the Civil Practice Act and rule 48 of the Supreme Court.

Defendant admitted that for the period in question his basic gross salary was $380 per month, earned as a schoolteacher. At the time the decree was entered the salary and financial status of teachers was uncertain because of difficulties of public financing and tax collections. For some time teachers had been unpaid, or were being paid with tax anticipation warrants. This was taken into account in the agreement and decree, which, among other things, provided for an initial payment in part from proceeds of tax warrants, when received. The parties are in agreement that the parts of the divorce decree dealing with property rights and the payment of alimony were entered by consent. Plaintiff is past 60 years of age and has been advised by her physician that because of a heart ailment, she is unable to work without seriously endangering her health and life. She incurred liability for approximately $300 as attorney’s fees in connection with the current petition. On December 14, 1944 the court entered an order finding that the decree, including the parts relating to alimony payments, was valid and binding, that it is not void for indefiniteness or uncertainty ; that there was due plaintiff from defendant as and for alimony the sum of $1,155.50; that his failure and refusal to pay the alimony was wilful and constituted contempt of court; found him guilty of wilful contempt of court; committed him to the common jail of Cook county for not exceeding six months, unless he sooner purge himself; and that he pay her the sum of $250 as and for her attorney’s fees. He appealed from this order and plaintiff has filed notice of cross-appeal. Therein she asks that we find the amount due from defendant to he $1,440.50.

Defendant maintains that the clause of the decree which provides that he pay to plaintiff as alimony “one-half of his salary earned and received as a teacher or employee of the public schools of the City of Chicago, Illinois, so long as he is so employed, and in the. event of the termination of such employment to pay one-half of his gross income” to her throughout her life or so long as she remains unmarried, is so indefinite and uncertain as to be void and unenforceable. He asserts that the portion of the decree which provides for the payment of alimony is by its very nature a money decree and must be for a sum certain, or for a sum which can be made certain by a mathematical computation arrived at from the very figures contained in the decree; that alimony must be for a certain specific and definite amount of money payable at certain and definite time or times; that by its very nature it is a money judgment and must have the qualities and limitations of such a judgment; that the amount must be specified so that at any given time, even at the end of the first week, if payment is weekly, an execution could be issued on the decree, setting forth the amount due as computed from the decree; and that with the decree in the form which plaintiff argues it should be, the clerk could compute the amount from the decree and issue an execution therefor “the same as in the case of any other judgment or decree for money.”

A divorce decree for the payment of alimony is, by its nature, a continuing order. An original money judgment does not order the defendant to pay anything, but simply adjudicates the amount owing, while an award for alimony directly commands defendant to pay. Sec. 18 of the Divorce Act (par. 19, ch. 40, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 109.186]) provides that the payment of alimony and maintenance may be enforced in any manner consistent with the rules and practice of the court. Sec. 42 of the Chancery Act (par. 42, ch. 22, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 106.06]) provides that the court may enforce a decree either by sequestration of real and personal estate by attachment against the person, by fine or imprisonment, or both, by causing possession of real and personal estate to be delivered to the party entitled thereto, or by ordering the demand of the complainant to be paid out of the effects or estate sequestered, or which are included in such decree, and by the exercise of such other powers as pertain to courts of chancery and which may be necessary for the attainment of justice. Sec. 47 of the same Act provides that a decree may he carried into effect by execution, or other final process according to the nature of the case and shall have the same operation or force as similar writs issued upon a judgment at law.

The legal liability of a husband for alimony is in the nature of an obligation or duty. In our opinion, the provision for the payment of alimony in the instant case is reasonably definite and certain while defendant is employed as a schoolteacher. It is unnecessary for us to speculate on the situation that might arise should defendant terminate his employment as a schoolteacher. That phase of the decree is not involved in the case before us. Defendant had no difficulty in understanding his duty under the decree, for he complied with it from the time it was entered on March 16, 1934 until September 1943. When defendant refused to further comply with the decree, plaintiff could have compelled compliance in accordance with the provisions of the Chancery Act and the Act on judgments and executions. For instance, she could have served notice on him that she would move for the entry of a judgment for the amount then in arrears and that execution issue thereon. What she did was to file a petition stating the facts and asking for a rule on defendant to show cause why he should not be held in contempt of court for failure to comply with the provisions of the decree, and that she be allowed attorney’s fees necessarily incurred. The court found the amount due under the decree, that he was guilty of wilful contempt in failing to pay such amount and directed that he he committed to the county jail and to pay plaintiff $250 as and for her attorney’s fees. Defendant was given 20 days in which to pay the amounts found to be due. There is no contention that he does not have the funds with which to comply with the commitment order, or that his refusal to pay was not wilful.

In Enoch v. Walter, 209 Ill. App. 619, we said that upon default in a decree for the payment of alimony, the court may, by supplemental proceeding, “ascertain the amount due and enter a decree for the payment thereof, upon which execution may issue.” We have read the cases cited by the parties. Defendant relies on the case of Heizer v. Heizer, reported in abstract form in 204 Ill. App. 200. We have read the complete opinion and the abstracts and briefs filed in the case. In that case the defendant argued that the decree was indefinite and unenforceable. The brief filed by plaintiff in the Heizer case did not make any attempt to answer the argument of defendant. The court in its opinion followed the argument presented by the defendant. The factual situation in the Heizer case is not comparable to the factual situation in the case at bar and in our opinion the views expressed are not applicable to the situation presented in the record before us. We agree with plaintiff that alimony decrees are fundamentally different from ordinary money decrees or judgments in that they are sui generis. We are satisfied that the provision of the decree to which defendant objects is not void or unenforceable for indefiniteness or uncertainty.

Defendant asserts that the amount required to be paid must be specified so that at any given time the clerk can compute the amount due from the decree and issue an execution, as in the case of any other judgment or decree for money. The clerk could not enter a judgment without the direction of the court and, of course, he could not issue an execution without a judgment. The fact that the clerk cannot at any given time compute the amount due from the decree and enter judgment, is not a proper test as to whether a decree for alimony is reasonably certain in its terms.

In support of her cross-appeal plaintiff contends that the court should have found as the amount due the sum of $1,506.50 instead of $1,155.50. The aggregate gross basic salary of defendant for the period was $4,180. The net amount of checks actually received by defendant for the period was $3,250. The total deductions for the period were as follows: Teacher’s Pension Fund for the benefit of defendant $132; Payment to substitute teachers during absences of defendant $63; Federal withholding taxes $570; and War Savings Bonds purchased by him through the Board of Education, paid by authorized deduction from salary $165. His net salary earned and received for the period after deductions for pension and payments to substitutes and before deductions for Federal taxes was $3,985. Defendant paid to plaintiff during the period as and for alimony the sum of $552. The trial court refused to deduct the sum of $165 applied for the purchase of War Bonds, but did deduct $132, the amount applied to the Teacher’s Pension Fund and $570 paid to the United States Treasury on account of Federal withholding taxes. The chancellor equally divided the balance, deducted from the result the sum of $552, which had been paid by plaintiff during the period and found the amount due to be $1,150.50. Plaintiff contends that the court should have refused to deduct from the gross salary earned any amount for pension fund or Federal withholding taxes, and asks that the order be amended by fixing the amount due to plaintiff as $1,506.50. The chancellor exercised sound judgment in determining the amount due.

For the reasons stated, the order of the circuit court of Cook county entered December 14, 1944 is affirmed.

Order affirmed.

Kiley, P. J., and Lewe, J., concur.


text:
    Robert E. Boehmer, Jr., by His Father and Next Friend, Robert E. Boehmer, Sr., Appellee, v. Michael Norton, Appellant.
    Gen. No. 43,469.
    Opinion filed February 13, 1946.
    Released for publication March 8, 1946.
    Miller, Gorham, Wescott & Adams, of Chicago, for appellant; Edward B. Adams, of Chicago, of counsel.

      Edward Arkema and Leo M. Tarpey, both of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

In a complaint filed by Robert E. Boehmer, Jr., against Michael Norton, he sought damages for injuries suffered while a passenger in an automobile owned by defendant and being driven by the latter’s servant, caused by the alleged negligence and wilful and wanton misconduct of such servant. Defendant denied the material allegations of the complaint. A trial before the court and a jury resulted in a verdict finding defendant guilty and assessing plaintiff’s damages at $4,000. Motions by defendant for a directed verdict, for judgment notwithstanding the verdict, and for a new trial, were overruled. On a remittitur of $1,500 the court entered judgment for $2,500, to reverse which defendant prosecutes this appeal.

Cicero avenue and Keating avenue are north and south streets, Keating avenue being one block east of Cicero avenue. North avenue and LeMoyne avenue are east and west streets, LeMoyne avenue being one block south of North _ avenue. These streets are in Chicago. Defendant operated an ice cream parlor at the southeast corner of North and Cicero avenues. He and his brother owned the premises one block east of that corner, located at the southwest corner of Keating and North avenues. On the rear of the latter premises there was a private garage in which defendant kept his two door 1941 Ford sedan automobile. The garage faced Keating avenue and the entrance was approximately 100 feet south of North avenue. Keating avenue, running south from North avenue, comes to a dead end and is blocked by a heavy board fence at the premises of the Pettibone Mulliken Company two blocks, or about 1,000 feet, south of North avenue.

Robert Weiser was an 18 year old boy who at times worked around the ice cream parlor. Plaintiff was in the ice cream parlor on the evening of Tuesday, February 9, 1943. He was then 16 years of age and a high school student. Defendant asked Weiser to put his car in his garage. The car was parked at the south curb of North avenue, facing east, in front of the ice cream parlor. The direct course to the garage was to drive one block east of Cicero avenue to Keating avenue, make a right turn and drive 100 feet south on Keating avenue to a space in the street in front of the garage, then make another right turn and drive the car into.-.the garage. Weiser was not a chauffeur in general charge of the car. He had taken defendant’s car to the garage a number of times.

There was evidence that defendant requested plaintiff to accompany Weiser. Plaintiff and Weiser went out to the car, where they met a boy named Eddie Juritz. The three boys were good friends and lived in the vicinity. They sat on the front seat of the car, Weiser sitting in the driver’s seat, Juritz in the center and plaintiff on the right. Weiser drove one block east to Keating avenue, but instead of turning south and driving the car into the garage, he turned north on Keating avenue and drove in that direction for a distance of two blocks. He then stopped, turned the car around, and sped south on Keating avenue at about 50 miles an hour, slowing down to 25 or 30 miles an hour as he crossed North avenue. Then, instead of slowing down further and driving the car into the garage, he speeded up and drove at a high rate of speed south on Keating avenue, passed the garage, passed the iiext cross street, LeMoyne avenue, and on to the dead end of Keating avenue, about 1,000 feet south of North avenue and about 900 feet south of. the garage, crashing into the fence at the dead end of Keating avenue, whereby plaintiff was injured. On that evening there was a large sheet of ice at the south end of Keating avenue, commencing about 130 feet. north of the dead end of Keating avenue.

Plaintiff testified that there are stop signs requiring drivers to stop as they approach North avenue; that he warned Weiser to slow down; that after the car crossed North avenue going south it was driven at about the same speed as before crossing North avenue; that in traveling toward LeMoyne avenue the car was going around 50 miles an hour; that as the car got beyond LeMoyne avenue “he didn’t seem to slow up or anything and we got about I would say about 130 feet from the fence and all of a sudden this boy in the middle hollered ‘look out, there is ice;’ ” that Weiser put his foot on the brakes; that “it was too late then and he skidded 50, 20 feet” and that he kept on going and hit the fence. Joe Gutilla, a 15 year old boy at the time of the occurrence and an acquaintance of the boys in the car, testified that he was standing on the west sidewalk of Keating avenue between North and LeMoyne avenues, about 10 houses south of defendant’s garage, when he saw defendant’s car being driven south at a high rate of speed; that it was traveling between 45 and 50 miles an hour; that after it passed him, he did not pay any further attention to it; and that he heard the crash and ran down there. Robert Weiser testified that at the time he was driving south toward North avenue, after having proceeded north, he was headed for the garage; that after passing the garage and going south of LeMoyne avenue he was going down to the corner “to turn around” and to come “back to the garage.” He testified further: “I had intended to turn around when I got to the end of the dead end street. Your guess is as good as mine why I was going down to that dead end. That is what I don’t know. I knew I had gone by the garage. I went by LeMoyne Street. I passed a lot of driveways so that I could have turned around.” Plaintiff was taken to a hospital where his injuries were treated. He remained there until February 27, 1943. There is no contention that the judgment is excessive.

Defendant maintains that the car was not being driven within the scope of the driver’s employment at the time of the causative conduct, that there was a deviation, and that therefore the court erred in denying his motions for a directed verdict and for judgment notwithstanding the verdict. Plaintiff replies that the evidence presented a question of fact for the determination of the jury and that the court did not err in denying defendant’s motions. We have read the cases cited by the parties on the subject of deviation, as well as many other cases. The law is well stated in the following excerpt from sec. 556, vol. 35, American Jurisprudence:

“When the deviation and its purpose are not in dispute, and it appears beyond reasonable controversy that the purpose had no connection with the duties of the servant, there is no liability, and it is the duty of the court to dismiss the action or direct a verdict, or, if a verdict has been rendered in favor of the plaintiff, to set it aside on motion. On the other hand, in cases where the deviation is slight and not unusual, the court may, and often will, as a matter of. law, determine that the servant was still executing his master’s business. Cases falling between these extremes will be regarded as involving merely a question of fact, to be left to the jury or other trier of such questions.”

The principal difficulty in determining the liability of the employer .where he claims to be exempt on the ground of the employee’s departure or deviation from the employer’s business, or the employee’s engagement upon a frolic of his own, lies in the determination of when the master’s employment ended and the employee’s departure or frolic began, and when that departure or frolic ended and the employee again entered upon his employer’s business.

In Riley v. Standard Oil Co. of New York, 231 N. Y. 301, a chauffeur employed by defendant was ordered-to take an autotruck and get some goods from the freight yard of a railroad. After he had gone there and had loaded the truck he discovered some waste wood, which he put on the truck. On leaving the freight yard he turned, not toward the defendant’s mill, but in an opposite direction to take the wood to his sister’s house. This errand served no purpose of the defendant, nor did defendant have knowledge thereof or consent to the act of the chauffeur. His course after delivering the wood and on his return to the mill took him past the entrance to .the freight yard. Before he reached this point and when he had gone a short distance from his sister’s house, he negligently struck the plaintiff with the truck, causing injuries for which the action was brought. The court of appeals held that the wood having been delivered, with the return journey back to the mill begun, at some point in the route the chauffeur again engaged in the defendant’s business, and that point, in view of all the circumstances, had been reached when the collision-occurred; hence, the judgment in favor of the defendant dismissing the complaint should be reversed and a new trial ordered. The court said (305):

“Should there be such a temporary abandonment the master again becomes liable for the servant’s acts when the latter once more begins to act in his business. Such a re-entry is not effected merely by the mental attitude of the servant. There must be that attitude coupled with a reasonable connection in time and space with the work in which he should be engaged. No hard and fast rule on the subject either of space or time can be applied. It cannot be said of a servant in charge of his master’s vehicle who temporarily abandons his line of travel for a purpose of his own that he again becomes a servant only when he reaches a point on his route which he necessarily would have passed had he obeyed his orders. He may choose a different way back. Doubtless this circumstance may be considered in connection with the other facts involved. It is not controlling.”

Defendant’s instruction to take the car to the garage was explicit and Weiser knew where the garage was located. No reasonable explanation is offered for his failure to follow the instruction, except that he was acting solely on a frolic of his own. Had he followed defendant’s instruction, Weiser would have driven the car 100 feet more than one block. At the time of the occurrence he had driven the car a distance of seven blocks, almost two of which were directly away from his proper destination. He traveled directly away from the garage after having reached it for no explainable reason. He had to drive only about 700 feet to perform his mission. At the time of the mishap he had driven about 3,400.feet, the last 900 feet of which were directly away from the objective of his mission. The path taken by Weiser, together with the speed at which he traveled, shows that his departure from his employer’s business was deliberate and for a purpose of his own. In the course of the trip Weiser departed from the scope of his employment twice. If he had any intention of stopping and driving into the garage at the time he drove south across North avenue, he would not have accelerated his speed to 50 miles an hour.

Plaintiff, calling attention to the testimony of the driver that his purpose in proceeding to the dead end of the street was to turn around to go back to the garage, urges that whether he passed the garage inadvertently or deliberately, his act in so doing did not take him out of the scope of his employment for the reason that when he passed the garage he was faced with two alternatives: one, to stop the car some distance beyond the garage, place it in reverse gear and back up to the garage; or, two, proceed a relatively short distance to the dead end of the street with which he was familiar and there make a “U” turn and drive to the garage. Plaintiff asserts that it was the latter course the driver chose. However, the driver also testified that “your guess is as good as mine, why I was going down to that dead end,” and that he passed “a lot of driveways so that I could have turned around.” Plaintiff testified that when the car got beyond LeMoyne avenue the driver “didn’t seem to slow up or anything.” As pointed out by the New York court of appeals, should there be a temporary abandonment of the employment, the master again becomes liable for the servant’s acts when the latter once more begins to act in his business. The court points out, however, that such a re-entry is not effected merely by the mental attitude of the servant, but there must be that attitude coupled with a reasonable connection in time and space with the work in which he should be engaged.

While in many instances the scope of employment is a question for the jury, yet where reasonable men could not come to a conclusion from the evidence that a servant was acting within the scope of his employment, it is the duty of the court to hold that as a matter of law, he was not so acting. The undisputed evidence, leaving out the statement of the driver as to his intention, establishes that he deviated from the employer’s business for a purpose of his own; that the purpose had no connection with his duties; that at the time of the occurrence the car was moving in a direction away from the garage and that he had not up to that time indicated by his conduct that the frolic had ended and that he had again entered upon his employer’s business. We are satisfied that the court erred in not directing a verdict for the defendant. Therefore the judgment of the superior court of Cook County is reversed and the cause remanded with directions to enter a judgment for the defendant and against the plaintiff.

Judgment reversed and cause remanded with directions.

Kiley, P. J., and Lewe, J., concur.


author: Mr. Presiding Justice Friend

text:
    C. F. Kuhlow and J. Litwin, Appellants, v. First National Bank of Chicago et al., Appellees.
    Gen. No. 43,332.
    Opinion filed February 14, 1946.
    Released for publication February 26, 1946.
    Shulman, Shulman & Abrams, of Chicago, for appellants; Meyer Abrams, of Chicago, of counsel.
    Winston, Strawn & Shaw, of Chicago, for certain appellee; John C. Slade, Bryce L. Hamilton and Frank B. Gilmer, all of Chicago, of counsel.
    Taylor, Miller, Busch & Boyden, of Chicago, for certain other appellees; John S. Miller, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

In case No. 42923, reported in abstract form in 324 Ill. App. 525, plaintiffs, as owners respectively of $1,000 and $7,000 of bonds of an issue of $3,500,000 on the Steuben Building, Chicago, sought to hold Halsey Stuart & Co., Inc. liable for fraudulent misrepresentations made to them in the sale of bonds, for breaches of trust growing out of an alleged fiduciary relationship and for an accounting. Upon recommendation of the master, the chancellor found that the defendant, Halsey Stuart & Co., was not a trustee and therefore not guilty of any breach of trust, that plaintiffs were not entitled to an accounting either on the ground of trust or fraud, and that plaintiffs were barred from maintaining any action because of the intervention of the statute of limitations and of laches. The complaint was accordingly dismissed for want of equity at plaintiffs’ costs, and the order was here affirmed.

In this proceeding the same plaintiffs, owners of the same bonds, sought to hold the First National Bank of Chicago, which was not a party to the foregoing proceeding, liable for breach of trust and for an accounting, under a mortgage trust deed and disbursement agreement growing out of the same bond issue involving the construction of the Steuben Building in Chicago. The facts with respect to the organization of the Steuben Club, its contract with the Chicago Title and Trust Company for the purchase of the land upon which the Club was to be erected, the underwriting or purchase of the mortgage bond issue by Halsey Stuart & Co., and the various undertakings of the Building Corporation, the Club and of Halsey Stuart, are sufficiently set forth in our former opinion and need not be repeated here. For the purposes of this proceeding it is sufficient to state .that on April 18, 1928, as part of the Steuben Club enterprise, a mortgage trust deed was executed pursuant to the provisions of the contract between the Steuben Club and Halsey Stuart wherein the Union Trust Company, which by later consolidation and merger was succeeded by the First National Bank, the defendant herein, became (1) Trustee of a mortgage trust deed executed by 188 Randolph Building Corporation to secure $3,500,000 of its series A and $600,000 of its series B first mortgage bonds, dated March 1, 1928, and (2.) Disbursing agent under an agreement with the Building Corporation and others, of monies, junior. securities and accounts receivable deposited with it for distribution in accordance with the directions and provisions of the disbursement agreement. The money so deposited included $2,490,113.02, which represented a part of the purchase price paid by Halsey Stuart & Co., Inc. for the entire $4,100,000 of series A and series B bonds. The disbursement agreement recited that this sum of $2,490,113.02 had been deposited with the disbursing agent by Halsey Stuart upon the written direction of the Building Corporation and the Steuben Club; that the Building Corporation “had appointed the Disbursing Agent its agent to receive payment of said sum, agreeing that the payment thereof to the Disbursing Agent shall be for all purposes payment thereof to the Company,” — that is, the Building Corporation ; and that the said sum was to be held and disbursed in accordance with the provisions of the disbursement agreement. In this proceeding plaintiffs seek an accounting and other equitable relief against the First National Bank on the principal ground that $539,674.28 of the funds were improperly disbursed by the Union Trust Company for nonconstruction purposes; and they also claim that an additional item of $30,150 disbursed for construction purposes was improper. More specifically, plaintiffs’ claim, as stated in their brief, is as follows: “It paid out $539,674.28 for non-construction purposes, resulting in the non-completion of the building on June 1, 1929, and in foreclosures on the lien claims. These items were:

Monthly deposits......................$369,000.00
Bondholders’ Income Tax.............. 5,898.82
1927 Real Estate Taxes................ 35,539.47
Trustees’ fees and fees of • Disbursing Agent................... 16,235.99
Insurance ............................ 15,000.00
Interest in payment of coupon due March 1, 1930...................... 98,000.00
Settlement of lien suit................. 30,150.00
totalling $569,824.28.”

The master in this proceeding, after a full hearing, filed an exhaustive report setting forth the facts relating to the various agreements entered into between the Club, the Building Corporation, Halsey Stuart and the Bank, and concluded that the Bank, both as trustee and as disbursing agent, faithfully discharged all its duties and responsibilities, that plaintiffs had failed to prove the allegations of their original and amended complaints, and that the equities of the cause were with defendants, and he recommended that the complaint be dismissed at plaintiffs’ costs. The chancellor adopted the master’s recommendations and entered the decree from which plaintiffs appeal.

The claims advanced by plaintiffs, as hereinbefore set forth in itemized form, do not rest on the contention that these disbursements were not authorized by the disbursement agreement; in fact all of them were directed to be made by the provisions of that instrument. On hearing before the master, plaintiffs stipulated that they do not in this proceeding contend that any of said disbursements were not made in compliance with the disbursement agreement except those for 1927 real estate taxes aggregating $35,539.47, and for settlement of a lien suit in the amount of $30,150, and in that stipulation they expressly limited plaintiffs’ ground of complaint with respect to disbursements to: (1) the use of the proceeds of the sale of the Building Corporation’s first mortgage bonds for other than “construction purposes,” and (2) the grounds stated in subparagraphs (a) to (e) of paragraph 14 of the complaint, which may be summarized as an attack upon the legality of the entire bond issue because it was allegedly ultra vires the Club. Plaintiffs further stipulated that they do not in this action question the amount or the reasonableness of the trustee’s fees and fees of the disbursing agent.

As to the two items excepted in the above stipulation, the master reported as follows: “It appears from the evidence that the Union Trust Company paid out on account the sum of $35,539.47 for general taxes for the year 1927, and $30,150.00 on account of a mechanic’s lien suit.

“The uncontroverted evidence is that the sum of $35,539.47 was paid by the Union Trust Company on April 25th, 1928, from the Real Estate Tax Reserve account which under the agreement was created for the specific purpose of ‘payment of taxes and special assessments upon the property payable during the construction period. ’ The sum of $30,150.00 was paid for the purpose of discharging a part of the legitimate cost of construction of the building and was authorized under the provisions of the Disbursement Agreement.”

With the exception of the two foregoing payments, plaintiffs’ claim against the Union Trust Company as disbursing agent is founded principally on the contention that the disbursing agent’s powers and duties were not those specified in the disbursement agreement, but were governed by virtue of other agreements which antedated and preceded the execution of the mortgage trust deed and the disbursement agreement. Specifically, the agreement relied upon by plaintiffs is the contract between the Steuben Club and Halsey Stuart dated November 23, 1927. That document was admitted in evidence subject to the objection of the defendants, and later in his report the master found that neither the Union Trust Company nor any of its officials had any knowledge of that agreement or of any of its contents, and accordingly ruled that the objection of the defendants was proper and that the contract of November 23, 1927 cannot be considered as legal evidence in the case; and he concluded as a matter of law that “Even if. the Union Trust Company were aware of the agreement of November 23rd, 1927, this could have no effect on the duties and responsibilities imposed upon the Union Trust Company under the two agreements to which it was a party unless said agreement of November 23rd, 1927, were in express terms made a part of the mortgage trust deed, or the disbursement agreement, or either or both.

“The ‘Charter of powers’ of the Union Trust Company was contained in the mortgage trust deed and the Disbursement Agreement. The Union Trust Company had no right to deviate from the duties and responsibilities fixed in these two documents. Had the Union Trust Company permitted the contract of November 23rd, 1927, in any manner to influence its course of conduct, it would definitely have been guilty of a breach of trust for the reason that said contract of November 23rd, 1927, was not referred to or in any manner made a part of either the mortgage trust deed or the Disbursement Agreement.

“The plaintiffs’ contention is that the transaction between the Steuben Club and Halsey, Stuart & Co. Inc. under the agreement of November 23rd, 1927, was an illegal transaction in that the Club had no power under its charter to enter directly or indirectly into any contract for the erection of the building in question and that the Steuben Club and Halsey, Stuart & Co. Inc. had entered into an unlawful conspiracy to swindle the public who might purchase the bonds of the new corporation which was to be created.

“No evidence was offered that would in any manner implicate the Union Trust Company with the contract of November 23rd, 1927, or with any other transactions between the Steuben Club and Halsey, Stuart & Co. Inc.”

But plaintiffs now argue that the Bank, in its dual capacity as trustee and disbursing agent, was chargeable with knowledge of the contents of the underwriting agreement and was charged with the duty of protecting the bondholders, and that the master erred when he excluded the underwriting agreement from the evidence and concluded that the Bank had no knowledge of its contents. They say that the agreement of November 23, 1927 between the Steuben Club and Halsey Stuart was described in the disbursement agreement between the Club and the Bank, and that the Bank was therefore chargeable with knowledge of the contents of the agreement, and in support of their position they advance the proposition and cite cases tending to hold that where one instrument is described in another and the means for ascertaining its contents are available, the parties to the agreement are chargeable with knowledge of the contents of the described agreement.

Until the final hearing of the case before the chancellor, plaintiffs had rested their claim that the disbursements complained of were improperly made, on the theory that the powers and duties of the disbursing agent were governed and limited by certain provisions of the underwriting agreement of November 23, 1927 between the Club and Halsey Stuart, and they argued in effect that this preliminary agreement to which the Union Trust Company was not a party, precluded the use of any part of the purchase price which Halsey Stuart paid for the bonds for any purpose except costs of construction. On that theory plaintiffs took the position that the $2,490,113.02 which Halsey Stuart paid over to the Union Trust Company on April 18, 1928 for disbursement “in accordance with the provisions thereof” could not be used for all the purposes therein specifically directed. The master rejected this argument, and we think properly so, by finding that the Union Trust Company had faithfully discharged all its duties and responsibilities under both the trust deed and the disbursement agreement, and he called attention to the plaintiffs’ concession that all the payments under the respective documents to which the Union Trust Company was a party, were authorized and sanctioned under the provisions of those documents, with the exception of two payments specifically objected to, namely, the payment of certain taxes and of a mechanic’s lien claim; and he reported that “The plaintiffs’ main attack, however, is based on certain rights and obligations which the plaintiffs claim were established under and by virtue of other written agreements which antedated and preceded the execution of the mortgage trust deed, and the Disbursement Agreement. Specifically, the agreement relied upon by the plaintiffs is the contract between the Steuben Club and Halsey, Stuart & Co., Inc., dated November 23rd, 1927.

‘ ‘ The important question of law to be determined in this proceeding is whether the statements, stipulations and conditions of this contract of November 23rd, 1927 (which was executed approximately six months prior to the execution of the mortgage trust deed and the Disbursement Agreement), in any manner controlled, limited or fixed the obligation of the Union Trust Company under the two documents to which it was a party.

“As a matter of fact, counsel for the plaintiffs here conceded in an argument before the Master that the plaintiffs ’ case would stand or fall on the admissibility of said contract of November 23rd, 1927, in evidence.”

Since the controversy here presented was determined largely upon the issue that the contract of November 23,1927 was not admissible and that the Union Trust Company had no knowledge of and was therefore not bound by that agreement, it becomes important to inquire whether the theory to which plaintiffs were committed while the case was being heard and argued before the master, is valid and tenable. The disbursement agreement represented what the parties in interest wanted done with the deposited funds on April 18, 1928, when the agreement was made. Of course, the Union Trust Company was not concerned with any undertaking for the expenditure of the funds under an agreement between the Steuben Club and Halsey Stuart made five months earlier. This would be true even if the Union Trust Company had knowledge of that earlier agreement. Moreover, it appears from the evidence that the Union Trust Company did not even know or have notice of the provisions of the contract of November 23, 1927, and the master so found. It is urged by plaintiffs, however, and it was so argued before the master, that the Union Trust Company was chargeable with knowledge of the contents of the contract with Halsey Stuart & Co. even though it had no actual knowledge thereof, and the argument is based on the claim that the agreement in question “was described in the Disbursement Agreement.” However, a reference to the recital of the disbursement agreement will show that the “underwriting contract” therein referred to was an agreement between Halsey Stuart and the Building Corporation, which was designated as “the Company.” The underwriting contract is not actually described and is referred to only to the extent of reciting that Halsey Stuart had thereby agreed to purchase and the Building Corporation had agreed to sell its bonds dated March 1, 1928, that the purchase price payable by the underwriters for said bonds, less certain deductions, should be deposited with the disbursing agent “for the purpose of securing the application and disbursement thereof in accordance with the provisions of this agreement”; that the portion of said purchase price to be so deposited was the sum of $2,490,113.02; that the Building Corporation and the Club had directed the underwriters in writing to pay said sum to the disbursing agent; and that the Building Corporation had appointed the disbursing agent its agent to receive payment thereof. We think these recitals of the disbursement agreement indicate that the master was correct in stating that the agreement of November 23, 1927 between Halsey Stuart and the Steuben Club “was not referred to or in any manner made a part of either the mortgage trust deed or the Disbursement Agreement.” Inasmuch as the Union Trust Company was a stranger to any agreement between Halsey Stuart and either the Building Corporation or the Steuben Club, notice to it was necessarily limited to what was stated in the disbursement agreement. Its duties were clearly outlined in that agreement, and it was not obliged to inquire into or concern itself with any earlier undertakings entered into between Halsey Stuart and others. We are therefore satisfied that the master correctly excluded the agreement of November 23,1927 from consideration in determining whether plaintiffs had any valid ground of complaint against the Bank.

Under their stipulation plaintiffs limited their claim of,,noncompliance with the disbursement agreement to two items, one being payment on April 25, 1928 of $35,539.47 on account of 1927 real estate taxes, and the other item being $30,150 paid February 20,1930 in settlement of a mechanic’s lien suit. These disbursements were not only authorized but were required to be made under the provisions of articles III and VII of the disbursement agreement. The master held from the uncontroverted evidence that “the sum of $35,539.47 was paid by the Union Trust Company on April 25th, 1928, from the Real Estate Tax Reserve account which under the agreement was created for the specific purpose of ‘payment of taxes and special assessments upon the property payable during the construction period.’ The sum of $30,150.00 was paid for the purpose of discharging a part of the legitimate cost of construction of the building and was authorized under the provisions of the Disbursement Agreement,” and he stated: “Despite any technical objections that the plaintiffs might make as to either of the aforesaid payments, or as to both, the broad fact remains that neither of these sums, or any part thereof, was dishonestly retained by the Union Trust Company, but [both] were paid out for legitimate purposes under the authority specifically granted the Union Trust Company in and by the Disbursement Agreement. The Union Trust Company derived no financial advantage through the payment of either or both of these items and in its broadest sense it can be stated that these payments were made for the protection and benefit of such persons who might in due course become owners and holders of bonds.” We think these findings are amply justified by the record here presented.

In addition to the foregoing charges, plaintiffs alleged fraud and misconduct against the Union Trust Company in its capacity as trustee under the trust deed of April 18, 1928, given to secure its issue of $4,100,000 of series A and B bonds. Among other allegations it is charged that the trustee actively participated in marketing “an illegal and fraudulent bond issue of $4,100,000.” There is no evidence in the record that Union Trust Company or its successors had anything to do with the marketing of the bonds, which was done wholly by Halsey Stuart, the purchaser of the entire issue from the Building Corporation. The claim that the bond issue itself was illegal and fraudulent is predicated on the contention that the acquisition of the premises, the organization of the Building Corporation, the erection of the building, and the sale and guarantee of payment of the $4,100,000 bond issue were all ultra vires the Club. We think this theory is utterly untenable and fallacious. The trust deed itself discloses that at the date of its execution, title to the land in question belonged to the Building Corporation; that the bonds secured by the trust deed were to be' issued by the Building Corporation; that the then proposed building was to be constructed by the Building Corporation; and that the effective conveyance of the land and building for the purposes of the mortgage was made by the Building Corporation. The Club merely quitclaimed whatever interest it might have had. The trust deed therefore obviously created a valid and effective mortgage by the Building Corporation on both land and building; and this would be true whether or not the Club’s guarantee, which was purely collateral to the mortgage, could have been enforced against the Club if it had remained in existence and financially responsible, and had elected to claim ultra vires as a defense. Charges such as that the trustee improperly certified the bonds, that it was the duty of the trustee under the trust deed to compel the Building Corporation to deposit with the disbursing agent the entire proceeds derived from the sale of its bonds, that the trustee knew that the Building Corporation did not have title to the mortgaged premises at the time- the mortgage was executed, that the bond issue exceeded 80 per cent of the value of the property covered thereby and therefore could not be validly sold as first mortgage bonds, and others, are unfounded in fact and in law, as shown in the master’s report, and are too numerous to discuss within the confines of this opinion.

The chancellor in overruling exceptions to the master’s report and before entering the decree from which this appeal is taken, indicated, among other reasons, that plaintiffs could not have prevailed because the bondholders were not injured by the making of the disbursements complained of, and indeed it is difficult to comprehend that the payment to series A bondholders of interest which they would not otherwise have received could in any view constitute an injury to the recipients for which a court of equity should award an accounting or grant any other form of equitable relief.

After careful consideration of the various questions presented and argued, we are convinced that the decree of the circuit court was proper, and it is therefore affirmed.

Decree affirmed.

Scanlan and Sullivan, JJ., concur.


text:
    Ruby Kraus, Appellant, v. Cyrus F. Campe, Trading as C. F. Campe & Company, Appellee.
    Gen. No. 43,351.

      Opinion filed February 14, 1946.
    Released for publication February 26, 1946.
    Marcus Levy, of Chicago, for appellant; Ode L. Rankin, of Chicago, of counsel.
    John A. L. Siegler, of Maywood, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

The plaintiff, Ruby Kraus, sued to recover a deposit of $500 earnest money placed with the defendant, C. F. Campe, a broker, on the purchase of real estate owned by Samuel and Osonna Jacobs, who were parties defendant but were dismissed on their own motion at the close of plaintiff’s case. Trial by the court without a jury resulted in a finding- and judgment for defendant, from which plaintiff appeals.

From the facts disclosed upon the hearing it appears that defendant is a real estate broker doing business in Chicago under the name of C. F. Campe & Company. On February 19, 1944 he represented Samuel and Osonna Jacobs and on their behalf he negotiated a contract by which they were to sell to plaintiff a two-apartment brick building and two-car brick garage for $12,000, described as “Street Number 2539 Gunnison Street.” No city, town, section, township, range, county or State is mentioned in the contract and no description is given by which the property might be identified. Plaintiff paid Campe a deposit of $500 as earnest money, the balance to be paid on closing of the deal. The agreement provided that the contract and deposit money were to be held by Campe and the deal was to be closed at his office within ten days after the title should be found merchantable, with the usual provisions for prorations of standing charges. It was provided that if plaintiff should default in the contract her deposit might, at the owners’ option, be forfeited as liquidated damages. The Jacobs’ title was registered under the Torrens system.

On March 29, 1944 Campe’s attorney sent a letter to plaintiff by registered mail advising her that Mr. and Mrs. Jacobs had offered to close the deal at her attorney’s office according to the contract, and that unless she exercised her rights within ten days “we [the Jacobs] shall consider the contract cancelled and null and void, and will forfeit your deposit.”

At the close of plaintiff’s case counsel for Samuel and Osonna Jacobs moved that his clients be dismissed from the proceeding on the theory, as he expressed it, that “until there is delivery of a deed there is no money belongs to Jacobs. It is still the purchaser’s money.” Adopting that theory, the court entered an order of dismissal as to the Jacobs, leaving the earnest money in the hands of Campe, the broker, with whom it had been deposited.

As the principal ground for reversal it is urged by plaintiff that Campe negotiated a contract which, by reason of its defective description of the property, rendered it unenforceable; that the deposit therefore never became the property of either the Jacobs or Campe; and that Campe acquired no title or possessory right in the deposit and was therefore bound to return it as money had and received and held to plaintiff’s credit.

In view of these contentions it becomes necessary at the outset to determine whether the agreement, by reason of its defective description, was a valid undertaking between the parties and capable of enforcement. Upon trial of the cause defendant sought to prove by extrinsic evidence that plaintiff had inspected the premises before she entered into the agreement and thus establish the identity of the property which was otherwise not susceptible of identification from the description in the contract. The court admitted the proffered evidence, not to vary the contract, as he stated, but to place the court “in the same position as the parties.” Defendant seeks to justify the court’s ruling by contending that extrinsic evidence is always competent if necessary for identifying property improperly, erroneously or insufficiently described, and his counsel and the court evidently relied on Brenneman v. Dillon, 296 Ill. 140, Higinbotham v. Blair, 308 Ill. 568, and Cumberledge v. Brooks, 235 Ill. 249. In the Brenneman case Moses Dillon conveyed improved real estate which he had owned in Sterling, Illinois for many years, described in his deed to the grantee as follows: “All that plot of ground together with three story 3 block buildings, also one frame building and others partly on same block said property being situated between first and second aves, in the city of Sterling County of White Side State of Ill. and being in the addition known as Mason & Dements said property being 365 feet on the North Western Bail Road and on the south side of the North Western Railroad.” The property in question had been used and occupied by the Moses Dillon Company in its business and was located between First and Second avenues in Sterling on the north side of the Chicago and Northwestern railway, and the improvements on it consisted of a three-story frame office .building, another old frame building and lumber sheds. It was situated on the south side of and along the right-of-way of the railroad between First avenue and Locust street and was improved with a two-story and basement brick building, a frame building and some sheds. Because of the discrepancy in the description of the property the court permitted Dillon’s grantee to introduce extrinsic evidence for the purpose of definitely locating the property from the description in the deed, and pointed out in the course of its opinion that Dillon “did own the property in controversy and it is situated in Sterling, Illinois. It does lie on the south side of the Chicago and Northwestern railroad, adjoins its right of way 339 feet, and on the opposite side it is 352 feet long. It is in Dement & Mason’s addition. Thus far there is no material defect in description. That the property was described as in Mason & Dement’s addition instead of Dement & Mason’s addition, and as extending 365 feet along the right of way of the railroad, we do not consider very material. ’ ’ It was conceded that the location of the property between First and Second avenues and the description of the improvements were erroneous, but the court held that “if the property can be definitely located from the description in the deed [such] deed will not be held void for uncertainty in description if by the aid of extrinsic evidence it can be made certain and the property located,” and that “a false description may be rejected for the purpose of giving effect to the deed if the true words are sufficient to designate the land.”

In Higinbotham v. Blair the deed in question conveyed a certain quarter section of land “except 39.20 acres,” and the court held that where the description in a deed is plain and unambiguous in its terms but is followed by an exception that is ambiguous and describes nothing, the exception must be rejected and the description as originally given must prevail. In Cumberledge v. Brooks specific performance was sought of an alleged contract incorporated in three letters exchanged between the parties in which the property in question was described by the grantor as “my undivided interest in the Chicago lots.” The prospective purchaser amplified this description in his letter of acceptance by referring to the property as the “undivided one-third interest in five lots in Chicago, now owned by Coco, Gertrude and yourself,” and in a third letter the grantor requested the number of the lots and the block, and called the purchaser’s attention to the fact that there were seven lots instead of five. It was there contended, and the chancellor held, that the correspondence between the parties did not so certainly and definitely describe the subject matter of the contract as to enable the court to specifically enforce it, for the reason that it left uncertain whether five lots or seven were bargained for, and that-extrinsic evidence was not admissible upon that question. The reviewing court held otherwise, however, and said: “It is true that a written contract must speak for itself as to the terms, conditions and limitations of the agreement, but as to the parties and subject matter of a contract extrinsic evidence is always competent, if necessary for their identification,” and quoting from Hayes v. O’Brien, 149 Ill. 403, to the effect that “ ‘A deed or other written contract is not void for uncertainty in the description of the land sold or conveyed, if from the words employed the description can be made certain by extrinsic evidence of facts, physical conditions, measurements or monuments referred to in the deed’ ” (italics ours), held that “There is no conjecture as to what the parties intended. The subject matter of their negotiation was Emmett Brooks’ undivided one-third interest in the Chicago lots, of which his sisters owned the other two-thirds. Whether the different tracts were divided into five or seven lots was an immaterial circumstance . . . and the agreement they made was binding on both, whether there were five lots or seven. . . . There is no difficulty, by the aid of competent evidence in this case, in finding the lots in Chicago in which Emmett Brooks owned an undivided interest. While no State, county, town, range, section, monument or measurement is referred to and the size of the lots is not given, it is definitely stated that they are the lots in Chicago which Emmett Brooks owned jointly with his two sisters, and the evidence shows that he never owned any interest in any lots in Chicago except those described in the bill. When the ownership of these lots is proved the identity of the subject matter of the contract is established.” In the case at bar the property described as 2539 Gunnison street is utterly devoid of any other identification; the contract does not mention or even suggest that the Jacobs occupied the property or that it was their home, whereas in Allen v. Bowen, 105 Ill. 361, the testatrix described the property as “my house and lot in the town of Pakota, Illinois”; nor was any evidence offered or received as to the ownership of the property here under consideration or its specific location or description.

As against these decisions we find the case of Heroux v. Romanowski, 336 Ill. 297, cited and relied upon by plaintiff. In that case specific performance was sought as to “the following described real estate, situated in the county of Cook and State of Illinois, to-wit: Six three-room flats and two (2) four-rooin flats at the northwest corner of Belden avenue and Lamon avenue, commonly known as 2302-2310 North Lamon avenue and lot, section ...., township ...., north range ...., east of the third P.M.” The court held that in order to entitle a party to specific performance of a contract the terms of the agreement must be clear, certain, unambiguous and free from doubt, citing Olson v. Forsberg, 332 Ill. 266; that a contract for the sale of land must definitely point out the land to be conveyed or furnish the means of identifying the land with certainty; and that if it fails in either respect a court of equity will not decree its specific performance, citing Kopprasch v. Satter, 331 Ill. 126. In conclusion it stated: “This court takes judicial knowledge of the fact that in the county of Cook there are many cities and villages, in any one of which, for aught that appears in the amended bill of complaint, there might be a Belden avenue; Lamon avenue or Palmer street. The descriptions of the properties in the contract in question are so uncertain as to require parol evidence to locate the properties, and as these ambiguities appear on the face of the writing itself, the uncertainty in the descriptions cannot be cured by extrinsic evidence. (Doyle v. Teas, 4 Scam. 202; Kohlbrecher v. Guettermann, 329 Ill. 246.) The contract is so uncertain and ambiguous that a court of equity will not decree its specific performance.”

The same principle is enunciated by the courts of other states. In Hammond v. Hacker, 93 Fla. 194, 111 So. 511, the court held that a contract to convey land will not be specifically enforced where no State or county is designated. Likewise in Harbers v. Brune, 245 S. W. 746 (Court of Civil Appeals of Texas), it was held that a contract for the sale of land, describing it as “about 300 acres of land on the west side of the Frelsburg road, and said land being in the Zimmerscheidt survey,” was not subject to specific performance because of insufficiency of the description in not disclosing in what county or State the land was located. From these decisions we take the rule to be that if the property can be definitely located from the description of the deed, extrinsic evidence is admissible to identify the particular property sought to be conveyed, but that where the property is incapable of being identified from the deed or contract and no city, county, town or State is indicated, and the description in the contract is so uncertain as to require parol evidence to locate the property, the uncertainty in the description cannot be cured by extrinsic evidence.

As the result of the foregoing conclusions, it follows that Campe submitted an unenforceable contract which he himself prepared, and under the established rule in this State, a real estate broker has not earned a commission by the negotiation of an unenforceable contract of. sale (Wilson v. Mason, 158 Ill. 304), and an earnest money deposit may be recovered when it appears that a contract is unenforceable (Gardner v. Shekleton, 253 Ill. App. 333). In the Wilson case the court adopted what it designated as the “true rule,” i.e., “that the broker is entitled to his commissions, if the purchaser presented by him and the vendor, his employer, enter into a valid, binding and enforceable contract. If, after the making of such a contract, even though executory in form, the purchaser declines to complete the sale and the seller refuses to compel performance, the broker ought not to be deprived of his commissions. He has done all that he can do when he produces a party who is able, and, in binding form, offers to purchase upon the proposed terms. An agreement by a real estate broker to procure a purchaser not only implies that the purchaser shall be one able to comply, but that the seller and the purchaser must be bound to each other in a valid contract. So, where the agreement of the real estate broker is to make a sale, his commission is earned when a contract is entered into which is mutually obligatory upon the vendor and vendee, even though the vendee afterwards refuses to execute his part of the contract of sale or purchase. [Citing numerous cases.]” If the contract before us could have been held to be a valid agreement, there would be considerable force in defendant’s contention that he earned his commission and was entitled to apply the earnest money in payment of his services; but inasmuch as we are constrained to hold that the agreement was invalid for lack of certainty, Wilson v. Mason and cases cited therein are authority for the rule that the earnest money deposit may be recovered when the contract turns out to be unenforceable.

In view of these conclusions it is unnecessary to discuss the other contention made by plaintiff that the dismissal of Samuel and Osonna Jacobs amounted to a disclaimer of the earnest money which plaintiff would therefore be entitled to recover from defendant as money had and received.

For the reasons indicated the judgment of the municipal court is reversed, and the cause is remanded with directions to enter judgment in favor of plaintiff.

Judgment reversed and cause remanded with directions to enter judgment in favor of plaintiff.

Scanlan and Sullivan, JJ., concur.