text:
    Thomas J. Robinson et al. v. William H. Appleton et al.

      Filed at Ottawa March 26, 1888.

    1. Specific) eebfobmanoe—the substance rather than the form of the ■contract considered. A court of equity, in considering a bill for specific performance, will not look to the form of the contract, but rather to the substance. It will regard a bond conditioned for the conveyance of land, the same as an article of agreement for the sale and purchase of the same, ■and will decree a specific performance of the condition, which will be treated as the agreement of the parties.
    2. Same—mutuality of remedy as between vendor cmd purchaser, and the assignee of the latter. A vendor may have a specific performance of a contract for the sale of land decreed against his vendee. The remedy is mutual, and may be availed of by either the vendor or the vendee. It lies in favor of the personal representatives of a deceased vendor, and against subsequent purchasers or assignees of the vendee taking with notice.
    3. Same—remedy as against assignee of purchaser—its nature and extent. The remedy by the vendor of land for specific performance, against the assignee of the vendee, is in the nature of a proceeding im rem, and no personal decree can be taken against the assignee for the puirohase money, unless he has assumed its payment as a part of the price he agreed to pay.
    4. Same—pwrchaser acqmrimg outstanding title—effect upon rights of vendor. Where a purchaser of land takes an obligation for a quitclaim deed from his vendor, and is let into possession, neither he, nor one claiming under him, will be allowed to acquire an outstanding title, and require the vendor to take a decree for the sale, only, of the title he had at the time •of the sale. In such case, it is proper to order a sale of the land generally, ffor the unpaid price.
    5. Vendob’s lien—how it may arise—and its nature and extent. It is mot necessary that a vendor’s lien shall be expressly reserved in a contract -for the sale of land. It is implied by the law, in the absence of anything •showing an intention to waive it. When expressly reserved, it is in the •nature of a mortgage, and there is nothing left to implication. But the -fact that a vendor retains the legal title in himself, and agrees to part with :it only upon full payment of the purchase money, affords conclusive evi■dence of his intention to reserve his lien. When the price is paid, the vendee becomes the complete equitable owner, and the vendor is simply ithe trustee or naked holder of the legal title for the vendee.

      6. A vendor’s lien proper, in equity, arises in cases where the owner of land conveys the same by deed, and thus divests himself of the legal title,, and all or some part of the purchase price remains unpaid. The vendor, in case of an executory contract for the sale of land, before conveyance, also-has a lien for the unpaid price, and can not be divested of his legal title-before payment. Tn the latter case, the vendee can not do anything to prejudice the vendor’s legal title, except by paying the price according to the terms of the contract. The vendor’s lien in such a case is not a secret one.
    7. Same—waiver of lien—option to declare forfeiture. A clause in a bond for a deed providing for the forfeiture of the contract, and all payments made thereon, in case of default in any other payments, will not operate as a waiver of the vendor’s lien on the premises for the unpaid purchase money. Such clause of forfeiture is not a security independent of the land, and is intended for the benefit of the vendor, which he may enforce, or not, at his pleasure. Until a forfeiture is declared, the rights and liabilities of the parties remain the same as if such clause had not been inserted, and the vendor may still enforce payment. The vendee or his assignee can take no advantage of it.
    8. Chanheby—retaining a cause for all purposes. Where a court of equity .has once acquired jurisdiction, it will retain the case until complete-justice has been done, settling all questions incident to the principal relief sought. So on bill by a vendor for the specific performance of a contract, for the sale of land, the court will take jurisdiction of the whole controversy, and may decree the payment of the purchase money, and enforce-the vendor’s lien for its payment, and thus prevent a multiplicity of suits.
    Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Rock Island county; the Hon. A. A. Smith, Judge, presiding.
    This was a hill filed by William H. Appleton and William W. Appleton, executors of the last will of James E. Cooley, deceased, in the circuit court of Rock Island county, against David B. Sears, Thomas J. Robinson, John H. Wilson, the Rock River Navigation and Water Power Company, the Rock Island Watch Company, and others. The bill was filed July 23, 1883. The bill alleges, in substance, that on or about the first day of December, 1866, James E. Cooley, being in possession of and claiming to own certain tracts of land particularly described in the bonds hereafter recited, agreed to sell and convey unto David B. Sears, by quitclaim deed, all his right, title and interest in and to the same, for $30,000, which Sears .agreed to pay as in said bond stated, and that said Cooley on that day executed and delivered to Sears his certain bond for a deed to said premises, wherein he agreed, that on condition that said Sears should pay or cause to be paid to said Cooley, his heirs, etc., the said sum of $30,000, as therein provided, and pay all taxes and assessments on the premises, he (Cooley) should make, execute and deliver a good and sufficient quitclaim deed of said land, conveying all of his (said Cooley’s) right, title and interest in and to the same, and all rights, title and interest of dower, homestead or otherwise, which his (said Cooley’s) wife might have in and to the same, to the said Sears, his heirs, etc., forever, covenanting against ¡all incumbrances done or suffered by said Cooley, as shown by the bond, a copy of which is attached to the bill as an exhibit; that Sears paid Cooley $5000 in hand, and to secure the balance of the purchase price gave said Cooley his five promissory notes, for $5000 each, bearing even date with the •said bond, payable in four, five, six, seven, eight and nine years after date, with seven per cent interest, to be paid semiannually in New York, all of which were paid except the two last falling due, and the interest thereon was paid up to May 1, 1876; that upon the execution and delivery of said bond and notes, said Sears entered into and took possession of said property and land, and the same has ever since been and now is in the possession of said Sears, or those claiming under him. The bill then shows the death of Cooley in 1882, and the probate of his last will and testament in the Surrogate’s Court of New York, and the granting of letters testamentary to complainants, who were appointed executors in and by said will; that after making a bequest to his wife, in lieu of dower, etc., the testator devised all the rest of his estate, real and personal, wherever situated, to complainants, in trust for certain uses therein set forth, whereby the legal title of said unpaid notes became invested in them; that Cooley, in his lifetime, and complainants, as such executors and devisees, have always been, and are now, ready and willing to perform said agreement for the sale and conveyance of said premises, upon payment of the residue of the purchase money, but that Sears has failed and refused to pay to Cooley, in his lifetime, or to complainants since his death; that after the probate of said will, and the issue of letters testamentary, the complainants, on June 18, 1883, tendered to said Sears a deed of conveyance of said premises, properly executed by them and by the widow of said testator, in accordance with the said title bond, together with the notes remaining unpaid, and demanded payment of the same, but that he refused to pay the same, or any part thereof, and complainants offer to bring such conveyance and notes into court, to be delivered up upon payment of the amount 'due, etc. The bill then alleges that the claims of the other defendants to said lands, and their rights therein, are subordinate to the right of complainants, and to their lien for the purchase money, showing that such other claimants entered into possession under said Sears. The bill prayed for an account of the amount of purchase money due, and that the same be declared a first lien upon the premises, and that Sears be required to specifically perform the said contract on his part, and that, in default of his paying the amount due, certain others of the defendants be enjoined from setting up their claims adversely to the complainants, and that said premises be sold, under the direction of the court, to satisfy the unpaid purchase money and costs, and that on such sale defendants be barred and foreclosed from asserting any title ■or right, save only the statutory right of redemption, etc.
    The death of David B. Sears was suggested January 22,1884, and his heirs made parties. Amendments were made to the original bill, and a demurrer to the same was overruled. The Rock River Navigation and Water Power Company, and certain other defendants, electing to stand by their demurrer, the bill was taken as confessed as to them and other defendants in default. Thomas J. Robinson, John H. Wilson and the Rock Island Watch Company answered, setting up that Cooley had no title to sell, and claiming under other sources of title than through Cooley, and admitting that Sears had assigned to them said bond for a deed. Replication was filed, and on hearing, the court entered a decree as to these defendants, substantially as prayed for in the bill. The defendant Thomas J. Robinson, John H. Wilson, the Rock Island Watch Company, and the Rock Island Navigation and Water Power Company, prayed an appeal to the Appellate Court, which was allowed.
    The condition of the bond from Cooley to Sears, bearing date November 1, 1866, recited, that whereas the said James E. Cooley has “this day, by this agreement, agreed to sell and convey, by quitclaim deed, as hereinafter provided, to said Sears, all my right, title and interest in and to the following described tracts of land and property, to-wit,”' (here follows the description,) “on condition that the said Sears shall pay, or cause to be paid, to me, the said Cooley, my heirs, executors, administrators or assigns, the sum of $30,000, as follows, to-wit: $5000 down, (the receipt whereof is hereby acknowledged,) $5000 in four years, $5000 in six years, $5000 in seven years, $5000 in eight years, and $5000 in nine years,, respectively, from the date thereof, and seven per cent interest, payable semi-annually, in New York, for which said last, named five several payments the said Sears has given his five-several promissory notes, each hearing date herewith, the said Sears having the right to pay the full amount named in said notes, and interest to the time of payment, at any time he may see fit to do so, and thus perform his part of the contract, whether the notes shall have matured or not: Now, if I, the said James Ewing Cooley, on the payment of said notes, either before or after maturity, as the said Sears may elect, (together with any and all taxes and assessments upon the premises,) shall make, execute and deliver, and cause to be made, executed and delivered, a good and sufficient quitclaim deed of said described land and property, conveying all my right, title and interest in and to the same, and all right, title and interest of dower, homestead, or otherwise, which my wife may have in and to the same, to the said Sears, his heirs, executors, administrators and assigns, forever, with covenant against all incumbrances and acts done or suffered by me, the said Cooley, then this obligation to be void, otherwise to remain in full force and effect. * * * And it is expressly understood, that in case of defalcation in the payment of the whole sum of said notes, and interest thereon, or any part thereof, to the time named and specified for their payment, then, in that case, all sums that have been previously paid on the same, and this obligation, shall be void and of no effect.” The bond was recorded in the land records of Rock Island county, December 28, 1866.
    Mr. Ira O. Wilkinson, and Messrs. Sweeney & Walker, for the appellants.
    Mr. Henry Curtis, for the appellees.
   Mr. Justice Shope

delivered the opinion of the Court:

This was a bill filed by the executors of the last will of James E. Cooley, deceased, for the specific performance of a contract, made by their testator with David B. Sears, since deceased, for the sale of several tracts of land. The law is-well settled, that the vendor may have a specific performance of a contract for the sale of land decreed against his vendee. (Chambers v. Rowe, 36 Ill. 171.) The remedy in cases of specific performance is mutual, so that either the vendor or vendee may avail of it. (Story’s Eq. Jur. secs. 723, 789, 790, 796; Andrews et al. v. Sullivan, 2 Gilm. 332; Burger et al. v. Potter et al. 32 Ill. 66.) This remedy extends in favor of the personal representatives of a deceased vendor, (Burger v. Potter, supra,) and against subsequent purchasers or assignees of the vendee, taking with notice. (Story’s Eq. Jur. sec. 789; Champion v. Brown, 6 Johns. Ch. 398.) The proceeding in this case may be regarded as in rem, as against appellants, who took as assignees of the original purchaser. It is clear that the vendor or his personal representatives can not have a personal decree against appellants, unless they, in their purchase from the vendee, Sears, assumed the payment of the unpaid purchase money as part of the price they were to pay Sears for his interest in the land. As said in Champion v. Brown, supra: “The remedy by the vendor, against the assignee, may be said to be in rem, rather than in personam.” And again: “The vendor can not make him personally liable for the purchase money, but the estate is liable, and if he be a purchaser with notice, it is the same thing whether the estate had or had not been actually conveyed by the vendor. ”

As appellants deny that a vendor’s lien ever attached to the premises, it seems proper to notice some distinctions in the different cases in which the lien obtains which have not been noticed by appellants, and which have not always been clearly distinguished in the adjudged cases. The vendor’slien, proper, arises in cases where the owner of land conveys the same by deed, thus divesting himself of the legal title, and where some part or all of the purchase price remains unpaid. In such case, the grantor retains, in equity, a lien for the unpaid purchase money. The other case of lien arises or grows out of an executory contract for the sale of lands, whether by ordinary contract or bond for a deed, whatever may be its form, and when a part or all of the purchase money remains unpaid. It is said in Pomeroy’s Equity Jurisprudence, section 1260: “There is a plain distinction between the lien of a grantor after a conveyance, and the interest of the vendor before conveyance. The former is not a legal estate, but is a mere equitable charge on the land. It is not even, in strictness, an equitable lien, until declared and established by judicial decree. In the latter, although possession may have been delivered to the vendee, and although, under the doctrine of conversion the vendee, may have acquired an equitable estate, yet the vendor retains the legal title, and the vendee can not prejudice that legal title, ■or do anything by which it shall be defeated, except by performing the very obligation on his part which the retention of ■such legal title was intended to secure,—namely, by paying the price according to the terms of the contract. To call this ■complete legal title a lien, is certainly a misnomer. In case ■of a conveyance, the grantor has a lien, but no title. In case of a contract for sale before conveyance, the vendor has the legal title, and has no need of any lien. His title is a more ■efficient security, since the vendee can not defeat it by any act •or transfer, even to or with a bona fide purchaser.” See, also, Vail v. Drexel, 9 Bradw. 439; McCaslin v. State, 44 Ind. 151; Pitts v. Parker, 44 Miss. 247; Driver v. Hudsputh, 16 Ala. 348; Sparks v. Hess, 15 Cal. 186; Church v. Smith, 39 Wis. 492; Reece v. Birts, 39 Ga. 565.

Sears having but an equitable title, by his conveyance or •assignment of Cooley’s bond for a deed could not pass any ■other or better title than he possessed, and appellants, taking ■only the equitable title of Sears, took the same subject to all the rights and equities existing against him in favor of Cooley. The retention of the legal title by Cooley was notice to pur■chasers of his vendee, of Cooley’s rights. The bond under which Sears entered and acquired possession, was duly recorded prior to the purchase of appellants from Sears, and this was notice that Sears held an equitable title only, which was hable to be divested by Cooley upon the non-performance of the condition of his bond. The security of Cooley for his purchase money was in no sense a secret lien, as in the case of an absolute conveyance of the property. Therefore, the argument ■of appellants, that the secret lien of a vendor after conveyance is not favored, can have no application here.

When a court of equity has once acquired jurisdiction, it ■will retain the ease until complete justice has been done, settling all questions incident to the principal relief sought.. (Story’s Eq. secs. 66-74, 796; Pomeroy’s Éq. 237.) On a bill by the vendor for a specific performance of a contract for the-sale of land, the court will take jurisdiction of the whole controversy, and may decree the payment of the purchase money,, and enforce the vendor’s lien for its payment, and thus prevent a multiplicity of suits. (Story’s Eq. see. 796.) In such cases, the court will not look to the form in which the contract is-written, but rather to the substance. It will regard a bond conditioned for the conveyance of land, the same as an article-of agreement for the sale and purchase of the same, and will decree a specific performance of the condition, which will be-treated as the agreement of the parties. Fitzpatrick v. Beatty, 1 Gilm. 454; Broadwell v. Broadwell, id. 599.

It is insisted that Cooley failed to reserve a lien in his bond.. It is not at all necessary that a lien shall be expressly reserved in a contract for the sale of land. It is implied bylaw, in the absence of anything showing that it is intended to-be waived. When the lien is expressly reserved, it is in the nature of a mortgage,—is the result of contract, leaving no-room for implication. But the fact that a vendor retains the legal title in himself, and agrees to convey only upon full payment of the purchase money, affords conclusive evidence of his intention to reserve his lien. The only purpose of retaining the title in the vendor is, that it may serve as a security for the payment of the purchase money, and when that is-paid the vendee becomes the complete equitable owner, and the vendor simply the trustee or naked holder of the legal title-for the vendee.

It is also insisted by appellants, with great earnestness, that the last clause of the bond, providing for the forfeiture of the contract, and all payments that have been made, if default is made in making full payment, shows Cooley’s intention to-waive his lien as vendor. This is based on the doctrine that the taking of any other security for the purchase money is a. waiver of the implied vendor’s lien. This doctrine has no application to this case. Cooley took no security independent of the land he had agreed to convey. It is true that the forfeiture clause is security for prompt payment, hut it is, nevertheless, a security on the land sold. It was a clause inserted for his benefit, which he might enforce or not, at his pleasure. Where a contract for the sale of land provides, that if the purchaser shall fail to perform any of his covenants, the vendor shall have the right to declare the contract void, until the vendor avails himself of such clause, the rights and liabilities •of the parties remain as if no such clause had been inserted, .and the vendor may still enforce payment. The vendee or his assignee can take no advantage of it. Mason v. Caldwell, 5 Gilm. 196; Chrisman v. Miller, 21 Ill. 227.

It is also claimed that the laches of the vendor is fatal to the ■assertion of his rights in this case. If this was an ordinary •equitable vendor’s lien, there would be much force in the objection; but here the rights of Cooley to a lien were patent, both from the record and the bond which was assigned to appellants. They took the bond with full notice of the charge upon the land, and stand in no better position to invoke this •defence than did Sears, even had they set it up by plea or .answer. The defence is, we think, wholly unavailing.

The decree of the circuit court is also objected to, in that it •decreed a sale of the land instead of annulling the contract .and declaring it void, and it is also urged that if a decree of sale was proper at all, it should have directed the sale, only, •of the right, title and interest which Sears derived from Cooley, instead of decreeing the sale of the land. From what has already been said, it will be seen that the decree of sale was properly entered. Also, while Cooley might have declared a forfeiture of the payments made, and declared the contract void for non-compliance with its conditions, he was under no •obligation to do so. He had the right to keep the contract in force, and enforce a specific performance against the vendee. He had the sole option of declaring the contract void for nonpayment, and if he elected to keep it alive, the court had no' power to interfere with such election. On the sale of land by bond or other executory contract, the lien of the vendor for the purchase money attaches to the land sold, and the. purchaser may be compelled either to pay the purchase money, to surrender up the land, or to have it sold to pay the purchase price. Story’s Eq. sec. 788.

As to the other objections, it will be seen that only a quitclaim deed was agreed to be made. Sears apparently was satisfied with Cooley’s title, and if it was defective, he must be presumed to have taken that into consideration in making the purchase, and to have paid less therefor, than he would otherwise have done. A purchaser may be willing to buy the title of one in possession which he knows to be defective, and take his chances of acquiring any outstanding title. At the time of this sale and purchase, Cooley was in possession of the land, claiming title thereto, and he and his grantor, Vandruff, had so been in possession for many years. It would seem to be inequitable to allow Sears, after his purchase, under which he obtained possession of valuable lands, to acquire an outstanding adverse title, and use it to defeat an action for the purchase money, having contracted for a quitclaim deed, only. After assuming the risk of the title he bargained for, he can not be allowed to make his vendor thus assume to warrant the title.

The recital in the bond is, that Cooley had agreed to sell and convey, by quitclaim deed, to Sears, all of his (Cooley’s) right, title and interest to the lands therein described, on condition that Sears, his heirs, etc., should pay, or cause to be paid, five promissory notes, of $5000 each, at the time and manner therein stipulated. This condition, which shows the real undertaking, is, that on payment of the notes, Cooley shall “make, execute and deliver, or cause to be made, executed and delivered, a good and sufficient quitclaim deed of said described lands and property, conveying all my right, title and interest in and to the same.” The fact that Cooley was only willing to make a quitclaim deed of his right, title and interest in the premises, shows that he was not to he responsible for the sufficiency of the title thus sold. The purchaser taking such a deed, or contract for such a deed, can have no recourse on his vendor. Under such circumstances, if he buys another independent title, it will be for his own protection, and not of his vendor. This being so, he can not use such title to the disadvantage of his vendor, or assert it against him, but must perform his covenant and agreement to pay for the land, and a decree against him for a specific performance of the contract, and sale of the land to satisfy the unpaid purchase money, is proper, and his assignee, with notice, stands in the same situation. Even if Sears had a bond for a warranty deed, and had then been compelled to purchase in a superior title, he could not be permitted to rescind his contract of purchase without offering to surrender the possession and to cancel the bond. No such offer was made in this case. It would be inequitable to permit Sears or his assignees to retain possession of the land, which they acquired under his agreement to pay the stipulated price for Cooley’s title, and repudiate the contract under which they entered.

The decree of the circuit court, as modified by the Appellate Court, is substantially correct, and appellants have no just cause of complaint. The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    William T. Burgess v. Alpheus C. Badger et al.

      Filed at Ottawa January 19, 1888.

      1. Contract—in respect to prosecuting certain suits, and division of fees for legal services—contract construed, as to the classes of creditors included, and as to deducting costs from the fees. A written contract was made and punctuated as follows: “Whereas for want of an agreement in writing, there may be some misunderstanding as to the contract existing between A, B and C, in regard to prosecuting certain suits in the interest of the estate of W. in bankruptcy, this memorandum is made for the purpose of putting said agreement in writing as follows: The suits prosecuted under this contract are: (naming them), and the agreement is that of whatever fees may be realized either under contracts with creditors of W or from J. assignee out of the funds received by said estate from or by reason of said suits, A is to receive one-fourth; B one-fourth and 0 one-fourth: C retaining the remaining one-fourth as a compensation for the raising of money which was necessary to carry the suits to the higher courts. January 15, 1881.” Held, that the contract extended to secured as well as unsecured creditors of W., and was not limited to unsecured creditors.
    2. The same contract, being between two attorneys and an accountant for the joint prosecution of the suits named, provided, “that whatever fees may be realized, either under contracts with” the creditors of the bankrupt, or from the assignee out of the funds received by the estate, etc., the two attorneys should each receive one-fourth and the accountant one-fourth, he to retain the other fourth as compensation for raising money to carry the suits to the higher courts: Held, that the fees to be divided were the sums realized after the payment of the costs and expenses incurred in the litigation, and not the gross amount of fees received.
    3. By such agreement there was that joint interest of the same nature in the particular venture, which constituted the parties partner's, and there being no stipulation in regard to the payment of costs and expenses, they must be paid by the firm, and must be deducted from the gross amount of fees received, before any division can take place.
    4. The provision in the contract, that the accountant was to retain the remaining one-fourth of the fees received, “as compensation for the raising of money to carry the suits to the higher courts, ” does not require him to pay for any other costs and expenses that the firm might incur in the prosecution of the joint enterprise. If one partner advanced money to defray such costs and expenses, this inuring to the benefit of all, he is equitably entitled to contribution from his co-partners.

      5. Same—construction by the parties—how far controlling—all must concur. Where the terms of an agreement are in any respect doubtful or uncertain, and the parties to it have, by their own conduct, placed a construction upon it which is reasonable, such construction will be adopted by the court, and in such case the court should endeavor to place itself in the position of the contracting parties, the better to understand the language •employed in the sense intended by them. .
    6. In the case of a verbal contract between A, B and 0, for the prosecution and defence of certain claims and suits, and for a division of fees realized, a construction put upon such contract by two of the parties, without the assent of the third, is not binding on either or any of them, and this construction can not be admitted to contradict or vary the terms of a subsequent writing entered into by all, setting forth what the original agreement was.
    7. Same— change of contract—concurrence of all the parties required. One of the parties to a contract can not change or cancel it, and when there are three parties to it, two of them can not do so without the consent of the other, for the reason that a change or abrogation of an existing contract is a new contract, to which the same parties as were necessary to the making of the original contract are indispensable.
    8. Same—rule of construction—recitals. It is the rule, in the construction of contracts, that where the words in the operative pari; of an instrument are of doubtful meaning, the recitals preceding the doubtful part may be used as a test to discover the intention of the parties and fix the meaning of the words. This does not mean,.however, that the language of the recitals alone shall be looked to, but that the entire language shall be considered,—that included in the recitals as well as that included in the operative part of the instrument,—and from the whole ascertain the intention of the parties.
    9. Paetkebship—dissolution, by act of one partner. While the failure of one partner to perform his part of the contract may authorize the other partners to refuse to go on with the partnership, and to have a dissolution declared, yet the contract of partnership can no more be cancelled by the act of a part of the partners than any other contract. The rights of a party under an executory contract, are, in a legal sense, property, of which he can no more be deprived without his consent than he can be of his tangible property.
    10. The fact that one partner, as an attorney, under an agreement among the partners for the prosecution and defence of certain suits, neglected to prepare a bill, and withdrew from another case, there being no serious culpability in his conduct, can not avail as evidence of his abandonment of his partnership contract, especially when such contract is afterward acknowledged by all the parties by reducing the same to writing.
    11. Same-—charge for services by one partner. In the absence of an agreement to that effect, one partner is not entitled to charge his co-partners for his services because he has done more than his just proportion of the work. The law never measures and settles between partners their various and unequal services bestowed on the joint business.
    12. Same—one partner buying in outstanding title on the request of another—estoppel. After the filing of a bill to settle a partnership account and business, one partner paid out a certain sum to buy in an outstanding title, on the request of another partner to protect the interest of the firm: Held, that the partner so requesting such purchase could not be allowed to-object that the purchase was improper.
    Writ oe Error to the Appellate Court for the First District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    One Samuel J. Walker having become largely indebted, ancl to many parties, was being pressed for payment of his debts, and sued for the collection thereof in different courts, both. Federal and State, in Cook county. Some of his creditors were-secured, but many were unsecured. William T. Burgess, an attorney at law, was employed by Walker to make defences for him in some of these suits, and, at the same time, Alpheus C. Badger, an experienced accountant, and likewise a creditor of Walker, was engaged in investigating the condition of Walker’s indebtedness, assets, etc., and in ascertaining and collecting facts material to the making of such defences. Walker neglecting to make satisfactory payments to Burgess for his services, Burgess abandoned his cases,—probably late in 1877 or early in 1878. Badger continued his labors, and after the abandonment of Burgess he procured Joseph N. Barker, an attorney at law, who had before been interested for a client in some litigation affecting Walker’s property, to take the place of Burgess in making defences for Walker. On the 26th of April, 1878, Walker, on his own petition, went into bankruptcy,. Barker preparing the petition, and on the 10th of May, 1878, ¡Robert E. Jenkins was, on the motion of Burgess and Barker, appointed provisional assignee of Walker. Some time in the spring of 1878, Badger and Barker entered into a contract, which was very soon afterwards enlarged to include Burgess, for the purpose of defending the estate of Walker against certain claims, and of collecting, etc., the claims of creditors-against his estate. This contract was verbal, but it is claimed, that it was reduced to writing on the 15th of January, A. D„ 1881. Work was done under the contract by all the parties, but after a time Burgess claims that Barker failed to perform his part of the contract, and that the contract was then can-celled as to Barker, so far that he, thereafter, had no interest in what was done by Burgess and Badger, and that a new contract was then made between Burgess and Badger. Burgess claims that under this new contract between himself and Badger, about the 25tli of July, 1884, Badger collected from Cyrus H. and Leander J. McCormick, $7000, of which he is-entitled to one-half, and Badger having paid him only $1348.56, and refused to account to him for any greater sum, Burgess filed his bill against Badger, for an account of the balance of the one-half of the $7000, in the Superior Court of Cook county. Answer was filed by Badger, and, subsequently, Barker was permitted to intervene and file answer and cross-bill. Barker alleged, in his cross-bill, the making of the verbal contract; between himself, Burgess and Badger, the subsequent reduction of that contract to writing, and that the $7000 was received by Badger under that contract, and that by its terms he is entitled to one-fourth of the $7000. He also further alleged the receipt of other sums by Burgess and Badger, of which he; is entitled to receive one-fourth. He prayed for an account of the partnership transactions, that Badger be restrained front paying Burgess any further sum, and for general relief. Badger also filed a cross-bill, alleging the making of the verbal agreement, its subsequent reduction to writing substantially as alleged in Barker’s cross-bill, and that he received the. $7000 under the contract between himself, Burgess and Barker. He further alleged various transactions pursuant to that contract, and that Burgess had become indebted to him under the contract, and he also prayed for an account. Answers were filed by Burgess to these cross-bills, and he also subsequently filed •an amended bill, more elaborately and in detail setting up his ■claims against Badger and Barker. The cauáe was referred to the master in chancery, to take and report the evidence, with his conclusions thereon. The master reported, and various ■exceptions were taken to his report. Some of the exceptions were sustained, and the cause was again referred, with instructions, to the master. The venue was then changed, on the application of Burgess, to another judge of the same court. The master afterwards reported, and, on exceptions being filed to this report, it was agreed that the court should examine the ■evidence, and make his own findings, and state the account without any further reference. Certain sums were found to be due from Burgess and Badger, each, to Barker, and a sum was found to be due from Burgess to Badger,—all of which were decreed to be paid. Burgess then prosecuted a writ of error on that decree from the Appellate Court for the First District, and that court affirmed the decree of the Superior Court. This writ of error is brought to review that judgment of the Appellate Court.
    Hr. John N. Jewett, for the plaintiff in error.
    Messrs. Lyman & Badger, for the defendant in error Badger.
    Mr. John Woodbridge, for the defendant in error Barker.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The writing executed by 'Barker, Burgess and Badger, was -written and punctuated as follows:

“Whereas for want of an agreement in writing, there may 'be some misunderstanding as to the contract existing between -Joseph N. Barker, William T. Burgess and A. C. Badger in .regard to prosecuting certain suits in the interest of the estate of S. J. Walker in bankruptcy, this memorandum is made for the purpose of putting said agreement in writing as follows r The suits prosecuted under this contract are: The International Bank v. R. E. Jenkins, assignee Aug. Bauer v. Same;: R. E. Jenkins assignee v. Union Trust Go., Greenbaum & Foreman et al., and cross-suit; Eli Kinney v. Bauer et al., and the-agreement is that of whatever fees may be realized either under contracts with creditors of Sam’l J. Walker or from R. E. Jenkins assignee out of the funds received by said estate from or by reason of said suits, J. N. Barker is to receive one-fourth ; W. T. Burgess one-fourth and A. G. Badger one-fourth; A. C. Badger retaining the remaining one-fourth as a compensation for the raising of money which was necessary to carry the suits to the higher courts.
Jan’y IS, 1881. Joseph N. Barker,
W. T. Burgess,
A. C. Badger.”

The contention of Burgess is, that this is limited to unsecured creditors—that the word “creditors” is controlled by the-recitals, the immediate context, and the immediate surroundings, to the unsecured creditors of Walker; while the other-parties contend, and the lower courts held, that it extends to-secured as well as unsecured creditors. In our opinion this is-the correct construction. It is the rule, as contended by counsel for plaintiff in error, that where the words in the operative-part of an instrument are of doubtful meaning, the recitals-preceding the doubtful part may be used as a test to discover the intention of the parties and fix the meaning of the words. (Walker et al. v. Tucker et al. 70 Ill. 527.) But this does not mean that we shall look at the language of the recitals, alone. It simply means that we shall look at the-entire language,— that included in the recitals as well as that included in the operative part of the instrument,—and from the whole ascertain the intention of the parties.

The recitals, here, do not assume to describe or limit the scope of the undertakings of the parties. They say, in effect, that the writing is executed, because otherwise “there may be some misunderstanding as to the existing contract, between the parties, in regard to prosecuting the suits,” which are named in the operative part of the instrument, “in the interest of the estate of S. J. Walker in bankruptcy.” The word “estate,” in "this connection, clearly means property. Under no definition «an it be made to include creditors, and so, “in the interest of the estate of S. J. Walker in bankruptcy,” must mean, in the interest of the property of S. J. Walker in bankruptcy, and this includes all the property he had, and every legal interest -that he had in property to which creditors might resort for the payment of debts. “In the interest,” we can only understand its meaning benefiting, by extinguishing or reducing liens or ■other incumbrances. It would seem quite significant that it is said the suits are prosecuted in the “interest of the estate,” ■and not in the interest of the assignee in bankruptcy, or of ■creditors proving claims in bankruptcy, as we must assume would have been said if it had been intended. Being in the interest of the estate or property, the resulting benefit must ■necessarily be primarily for all having a right to look to that ■estate or property for the payment of debts, and ultimately for the owner. Manifestly, creditors secured by junior liens (especially where there was any question of the adequacy of their security,) upon property whereon prior liens were sought to be removed or reduced by prosecuting the designated suits, would be benefited thereby, and might, in many instances, more readily than general creditors, be expected to be willing to pay for services thus rendered. How the parties anticipated they would be paid for rendering this service “in the interest •of the estate in bankruptcy,” is not expressed in the recitals, but is left to be expressed in the operative part of the instrument. It must be obvious that they could only have anticipated they would be compensated by payments to be made ■by those to be benefited, and. that all that would be benefited would be willing to contribute in some measure proportioned to benefits. Those who would most certainly be benefited were what are spoken of as “secured creditors,”—not required to prove their claims in bankruptcy,—but whose security was inadequate unless prior liens, the subject of the designated suits, were removed or reduced. General creditors could have no interest in these suits unless the property involved would more than pay all liens upon it,—a contingency which, in fact, never happened. It would therefore have been, to say the least, extraordinary, that men fully informed, as were these parties, of the condition of Walker’s estate, and two of them, learned in the law, should have entered into a contract for the prosecuting of suits to remove or reduce prior liens upon property, which would certainly benefit junior lienors, but which could only, by a remote probability, benefit, materially, general creditors, with the expectation and understanding that their only compensation would be derived from general creditors.

Burgess admits, that punctuating the language of the operative part of the instrument one way, it will include seemed as well as unsecured creditors. Since, therefore, the language, as the instrument was written, was not punctuated at all, it would seem plainly to be required to be punctuated in this way, so as to give a reasonable, rather than an unreasonable, construction, as thus: “And the agreement is that of whatever fees may be realized either under contracts with creditors of Samuel J. Walker, or from R. B. Jenkins assignee out of the funds received by said estate from or by reason of said suits” etc. The word “creditors” not being qualified, includes, of course, junior lienors, as well as unsecured creditors. We do not think it of moment, that this construction makes certain words redundant, for it is impossible to adopt any construction which will not disclose some redundancy of language. It is, moreover, a familiar rule, that when the terms of an agreement are in any respect doubtful or uncertain, and the parties to it have, by their own conduct, placed a construction upon it which is reasonable, such construction will be adopted by the court. (People ex rel. v. Murphy, 119 Ill. 159.) And it is also, in such case, required, that the court place itself in the position of the contracting parties, the better to understand the language employed, in the sense intended by them. Wilson v. Roots, 119 Ill. 386, and authorities there cited.

We find no contradiction in the evidence in regard to the origin of the contract. Burgess and Barker, as attorneys at law, and Badger, as accountant and business agent, had become familiar with Walker’s affairs, and the character and extent of litigation in which he was involved. They believed that by taking the eases named in the writing, to the higher courts, the liens upon Walker’s property involved in them could either be removed or materially reduced, and thereby that junior lienors would certainly be, and that general creditors might be, materially benefited, and, therefore, that profitable contracts could be obtained, both from junior lienors and general creditors of the estate, to prosecute the suits named. The multiplicity and conflicting character of the liens of secured creditors rendered much investigating and contracting, or litigating, proper, if not, indeed, absolutely necessary,—so both the services of the business man and the lawyer were in demand. Some contracts had been made in reference to the collection of claims against Walker, before the making of the verbal agreement, and they related to both secured and unsecured claims. Badger and Barker each testified that the verbal agreement included secured as well as unsecured claims against Walker and his estate. Their language in this respect is, “every kind of suit and contract with his creditors,” * * * everything that we were to do with or for the creditors of this estate of S. J. Walker,—and this is virtually admitted by Burgess. It is also shown, that after the making of the verbal agreement, Badger obtained contracts, in his own name, but for the benefit of the three, from many parties, in respect of both secured and unsecured claims, and that every contract on which Burgess was held liable in the account, as finally made up by the chancellor, was obtained before the instrument in writing of January 15,1881, was signed. The master held him liable on a contract obtained after that date, but the chancellor, in correcting the account, rejected it. The evidence, moreover, shows that the McCormick contract, the money received upon which is the chief hone of contention in this litigation, was in relation to a claim of-the McCormicks which was a junior lien upon property upon which the Greenbaum & Foreman suit was prosecuted to enforce a prior lien, and that the defence in that suit enabled Badger to make, ultimately, the adjustments whereby he earned and received for the three the $7000, and so the McCormick contract fell directly within the results of the prosecution of the suits specifically named in the instrument of January 15, 1881; and both Badger and Barker testify, in addition, that the McCormick contract was obtained under the verbal agreement," for the benefit of the three parties. Beyond question, therefore, the parties themselves, from the making of the verbal agreement, understood “creditors of Samuel J. Walker” to mean secured as well as unsecured, and so they must therefore have intended it to mean in the written instrument of January 15, 1881.

But conceding that the parties originally intended, by the verbal agreement, secured as well as unsecured creditors, Burgess contends that the original agreement was departed from and intended to be changed by the parties before the execution of the written instrument of January 15,1881. It can hardly be necessary to cite authorities to so plain a proposition, as that one party can not change or cancel a contract, or, when there are three parties to it, that two of them can not do so-without the consent of the other. One or two parties to a tripartite contract may, indeed, refuse to perform it, and may take the legal consequences resulting therefrom; but they, can not go on and do what the contract requires them to do, and say that the remaining party shall have no interest in it, he meanwhile not having consented to any abrogation or change oí the contract. And the reason is obvious. A change or abrogation of an existing contract is a new contract, to which the same parties that were necessary to the making of the original contract are indispensable. Bishop on Contracts, (1st ed.) chap. 33. Undoubtedly a partnership at will may be dissolved, as contended by plaintiff in error, at the express desire of any of the parties; but a partnership for the doing of certain specified things, as was here agreed, is not a partnership at will, but for a term implied, measured by the length of time reasonably required to do those things.

It may be proper to observe, to avoid misapprehension, that Burgess, Barker and Badger stand before us equally, presumably, entitled to credit. The former two hold, each, a license from this court to practice law, and there can be nothing presumed against either. There is testimony given by Burgess to the effect that he was dissatisfied with Barker,—that Barker, in his opinion, was not doing his part of the work, and that he so told Badger, and also that he told Badger that he was not willing to proceed, allowing Barker an equal amount of the proceeds of the business. Badger does not testify that he ever communicated these remarks to Barker, and Barker testifies that they never were communicated to him. Most of these declarations are claimed to have been made by Burgess before January 15,1881, and yet, by the instrument then executed, all the parties thereto expressly admit an existing contract, the terms of which are thereby to be rendered certain.

On the 1st of November, 1879, Burgess addressed a letter to Barker, stating what he understood the contract to apply to, and Barker replied to it on the 11th of the same month. Burgess seems to contend that this amounted to a modification of the verbal contract; but it is quite apparent that it did not, because, first, the letters, are only between Burgess and Barker, and, of course, therefore could not affect Badger; and second, they do not assume to be the statement of a new -contract, but merely to be what each understands in regard to -certain parts of an existing contract. Burgess’ letter, however, is pertinent, as contradicting the claim he now makes that the •contract did not include secured creditors, for he writes that the contract included “all contracts in the hands of Badger, which may be settled out of any general fund in the hands of :S. J. Walker’s assignee in bankruptcy, and to any contracts at this date in the hands of Mr. Badger, having reference to the ■suits of International Bank v. Walker, Bowen v. Walker, and Greenbaum & Foreman v. Walker,” etc.

There was, under the evidence before us, nothing in the verbal contract limiting it to contracts in the hands of Badger on the 1st of November, 1879, and whatever doubt there may be as to the proper construction of the instrument executed on the 15th of January, 1881, in other respects, there is no pre-j tense that, hy its terms, it was limited to such contracts, having reference to the suits of International Bank v. Walker, Bowen v. Walker, and Greenbaum & Foreman v. Walker, etc., as were in the hands of Badger on the 1st day of November, 1879.

Again, Burgess contends that he refused to go on with the contract unless it should be changed, and that the writing of January 15, 1881, was drawn up and signed for the purpose of changing it. Unfortunately for this view he made no such ■communication to Barker. Barker’s testimony is, that he .signed it, not for the purpose of changing the contract, but for the purpose of reducing an existing verbal agreement to writing. TTi.q language is: “Badger came to my office, and said, ‘Mr. Barker, we have not a written contract as to what our arrangement is. I have reduced a little (our verbal) contract here to writing.’ There was nothing said by Badger further than that it was to reduce our contract to writing. I read it, and I believed it carried out the spirit of our original contract. With that understanding I signed that contract, and we continued under that. I never had any word with Burgess in relation to the contract, one way or the other, and we continued right along up to, so far as I know, the present time.” Badger testified, that after the contract was signed, and after conversations thereafter had with Burgess, he and Burgess came to the conclusion that the written contract changed the verbal contract; but he does not state that he signed it with the understanding that it should have that effect, or that 'he informed Barker that it was designed to have that effect. He was asked: “Was anything said in your conversation with Barker, at the time he signed the written contract, that it was different from the verbal contract ?” And he answered: “I do not remember that there was.” He was again asked: “When you presented this contract to Mr. Barker for signature, didn’t you state to him that it was merely, reducing to writing their original agreement ?” He answered: “I have no idea,—no recollection of the conversation. * * * I have no remembrance of what I did say to him.” He had also been previously asked on what ground he thought Barker had given up his rights, and he had answered: “Because we” (that is, himself and Burgess,) “determined that the contract had a different meaning from what the verbal contract had.” And so the testimony of Barker on this point is uncontradicted.

There was an agreement made between Badger and Burgess subsequent to the 15th of January, 1881,—that is, on the 21st of that month,—in regard to matters not included in that instrument ; but Barker was neither party nor privy to it, and, of course, was therefore unaffected by it.

Conduct of Barker in neglecting to prepare a bill in chancery as requested by Burgess, and in withdrawing his name from a certain suit as counsel for Walker, is insisted upon as evidence of an abandonment of the contract by Barker. We think the evidence sufficiently shows that Barker was not seriously culpable in either of these respects, and, in any event, both were occurrences long before the signing of the instrument of January 15, 1881, which, as we have seen, expressly admits the existence, at that time, of the contract.

Burgess" has discussed, in his argument, his right to dissolve the partnership, and he, in effect, insists that Barker had no vested property rights in it. That a bill to specifically perform a contract of partnership will not lie, especially when such partnership is limited to personal services to be performed in the future, is doubtless true, and it is also doubtless true that a partner may voluntarily abandon his rights under a partnership contract, and that the failure of one partner to perform his part of the contract may be sufficient reason for -the other partners to refuse to go on with the partnership, and to have a dissolution declared. But a contract of partnership can no more be cancelled by the act of a part of the partners, than any°other contract can be cancelled by a part, only, of the contracting parties, and the rights of a party under an executory contract are, in a legal sense, property of which he can no more be deprived, without his consent, than he can be of his ownership of tangible property. The evidence, it has before been seen, fails to show that Barker ever consented to a dissolution of the partnership, and the mere fact that he may have been inattentive or negligent in the performance of his duties, is plainly not sufficient to prove an abandonment, and we have before observed, that the specific evidence of acts of abandonment of the contract, relied upon by Burgess, are insufficient.

Again, it is contended by Burgess, that under all the evidence he is entitled to have the value of his services estimated, and to a proportionate compensation, and he cites Webster v. Bray, 7 Hare, *159, in support of that contention. It is enough to say of that case, that so much of the opinion as is supposed to be pertinent here, is predicated upon an agreement between the parties. The evidence here fails- to show an analogous agreement between Burgess and Barker. We believe the rule to be well settled, that in the absence of a stipulation to that effect, one partner is not entitled to charge his co-partners for his services, or because he has done more than his just proportion of work. The law never undertakes to measure and. to settle between the partners their various and unequal services bestowed on the joint business. Collyer on Partnership, (Perkins’ ed.) sec. 183.

The next question to be considered is, What is meant by the word “fees,” as used in the instrument of January 15, 1881? Burgess contends that it means gross receipts for services rendered in the particular cases, while the court below held that it means the amount received by the partnership after the payment of all expenses incurred in earning them. Badger and Barker agree in testifying, that by the verbal contract the costs were to be paid before a division of receipts; but the writing of January 15, 1881, says nothing about costs and expenses, arid speaks only of fees to be divided between the-parties.

By the agreement, there was, clearly, that joint interest of the same nature in the particular venture which constituted the parties partners. Robbins v. Laswell, 27 Ill. 365; Collyer on Partnership, (Perkins’ ed.) secs. 18, 19; Parsons on Partnership, p. él. A communion of profit implies a communion of loss. (Collyer on Partnership, see. 18, supra.) Of course, this may be otherwise provided by contract, but in the absence of contract this is the rule, (Parsons on Partnership, p. 41,. supra,) and hence it will follow, there being no stipulation in regard to the payment of costs and expenses, that they are to-be paid by the firm, and so their amount must necessarily be deducted from the gross amount of fees received, before there-can be anything to divide between the partners.

Burgess, in a very long and ingenious argument, opposes-many objections to this view, the substance of which may be considered under two heads: First, that it is opposed by Badger’s own pleadings'; second, that it is not sustained by a reasonable construction of the language of the instrument-We shall briefly examine these in their order.

First—Badger, in his cross-bill, alleged that Barker and Burgess were to attend to the law part of the business, and that he was to attend to the facts and figures of the business; and Burgess contends that the law business does not include advancing money for costs, and that “facts and figures,” therefore, must. But this conclusion, plainly, can not follow. Badger was an accountant, and when it is said that a person who is known to be an accountant is “to attend to facts and figures,” it would seem there can be no difficulty in comprehending what is meant. No one, surely, could understand it to be an undertaking to advance money. It is an undertaking to advance nothing, but simply to attend to particular duties, presumably rendered necessary by the business for which the parties were united,—namely, to hunt up facts in regard to the different claims against Walker’s estate, the existence, situation and condition of his property, and to make the necessary calculations in reference thereto. It seems to be assumed by Burgess, that some one must expressly have assumed, in the writing, to advance money, and that because he and Barker did not do so, Badger must have done so. But it is evident this can not be true. If a specific undertaking is entered upon which requires money to be expended, furnishing the money is an obligation incident to the undertaking, and it falls upon all the parties entering upon the specific undertaking, unless they expressly stipulate otherwise. As, for instance, if A, B and C enter into an agreement to buy and sell grain, saying nothing about furnishing money with which to buy, the duty would undoubtedly rest upon A, B and 0, equally, to advance the money, in proportion to their respective agreed interests.

Again, Badger, in his cross-bill, sets out the instrument of January 15, 1881, witnessing the agreement between himself, Barker and Burgess, and also the instrument of the 21st of the same month, witnessing the agreement between himself and Burgess alone, and then proceeds to place his construction upon them, and in doing so used the language, that in the first named instrument it is agreed, among other things, “that the amounts recovered shall he divided, ” etc., and in the second named instrument, that 11 amounts received” shall- be divided, etc.; and this is claimed to be inconsistent with his prior allegation, that, by the verbal agreement between the parties, the sums advanced should be refunded before a division of the fees, and conclusive that the fees are, by the written instrument, to be divided before advances are refunded. We think that, from the whole bill, it is quite clear that Badger did not use the word “recover” in the sense of excluding the repayment of advances before the distribution of fees. Indeed, there are specific allegations to the contrary, which we deem it unnecessary to transcribe. But it is a sufficient answer to this contention that he makes an exhibit of each instrument, and his allegation of their meaning, therefore, if not authorized by them, can avail nothing, but must be regarded as surplusage.

• Second—But Burgess again contends, that the fact that it is stipulated that “A. C. Badger retaining the remaining one-fourth as a compensation for the raising of money to carry the suits to the higher courts,” it follows that no other fees were intended to be provided for. Concede this to be true, it simply follows that there is no provision for the advancement of money for any other purposes. The maxim, that the expression of one is the exclusion of another, applies with equal pertinency to Badger as to the others. We may go farther, and concede that it is not contemplated by the written instrument that there will be a necessity for the advancement of money for any other purposes. It certainly must be obvious that the partners might have gone on without spending any more money. Whether it would have been profitable to have -done so, concerned them alone. They were not obliged to go on and incur additional expenses, and whether they should do so or not, as the occasions presented,-was for them to determine, in which one had just as much authority as another. It was competent, as the occasions presented, to make special agreements in regard to the advancing of money, and Badger testifies that such agreements were here made, and that the amounts advanced should be refunded before a division of fees among the partners. But if such special agreements were not made, but it was yet- determined to go on and do that for the benefit of the firm which could not be done without the expenditure of money, it is clear that since the expense would be for the benefit of all, it should be paid by all; and if one member advanced the amount, he would be equitably entitled to contribution from his partners. Story’s Eq. sec. 504.

It is unnecessary to look into dictionaries for the definition of the word “fees.” There is no ambiguity in its meaning as here used. It plainly means the money received for the services of these parties, each and all. When earned, they belong to the firm, and constitute that which is to be divided between the parties; but they also, at the same time, constitute the fund, and the only fund, from which debts can be paid. The line of argument pursued by Burgess seems to ignore the fact of the entire equality, to the extent of their designated interests, of all the partners, and to assume that Badger is under some primary liability, not resting on the others, to make advancements, in the absence of stipulation exempting him. There is nothing in the character of duties assumed by Badger making him exceptional, and the circumstance that Badger’s claim for advances exceeds that of either of the others, is the result of no primary contractual relation, but of convenience to the other parties, only. It is not perceived that the equitable rights of Burgess arid Barker, in this respect,' are different than they would have been if the same money had been advanced by a stranger.

We have omitted to notice some other matters adduced in argument on the questions we have considered, not because we have not considered them also, but because we deemed them untenable, and that their discussion at length was unnecessary.

Several objections are taken to the account as stated. It is objected that the court ought to have taken and stated an account, as between Burgess and Barker, of matters- under the contract of January 21, 1881. We think the evidence clearly shows that the only item that there is any plausibility for saying comes under that contract, is the Converse' contract, and the chancellor, on the ground that it did come under that contract, held that Burgess was not required to account for the amount that he received under it. Whether the chancellor was correct in that ruling, or otherwise, Burgess has certainly been allowed to retain all to which he has shown himself entitled. The contract between Burgess and Badger, of January 21, 1881, has no reference to fees earned by them, conjointly with Barker, under the instrument of January 15, 1881, but refers solely, by its express terms, to matters beyond those referred to in that instrument. And -hence there was properly. no account taken between them, alone, of fees earned conjointly with Barker under the instrument of January 15, 1881.

An objection is urged, and commented upon at considerable length, because no account is rendered by Badger of $500 that he received from Whitaker to aid in taking' to the higher courts the eases specifically designated in the instrument of January 15, 1881. But it does not appear that Burgess has any interest in that money. He is charged with nothing by reason of it, and no fund in which he is entitled to participate is depreciated by Badger’s failure to account for it. It rests wholly as a matter of private concern between Whitaker, Barker and Badger. If Badger had taken credit for the amount he has paid to refund it, then Burgess might have complained; but he has not done so.

It is objected that Badger is improperly credited with $T50 paid hy him in 1885, since this suit was commenced, to buy in an outstanding title. The testimony shows that that purchase was made by the request of Burges's to protect the interests of the partners. It does not now; lie in his month to say that the purchase was an improper one.

Objection is urged because a letter, known as the “Pierce-Speed letter” of April, 187Y, was admitted in evidence without any proof of its acceptance by Speed. The objection is not-well taken. Badger testified that the Speed contract was a contract between the Third National Bank and Speed, and that Badger’s contract was with Speed, and that that contract was one of the contracts that came in under his “arrangement with Burgess and Barker.” The testimony is, that the negotiations between the bank and Speed were conducted by Badger, and Badger afterwards made an arrangement with Speed.

There are some other objections urged to the decree, of minor importance, but we do not think they are tenable. We are unable to say, in any respect, that the decree is not sustained by the evidence.

We do not perceive any satisfactory reason for reversing the judgment of the Appellate Court, and it is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Wilmot Castle et al. v. Amos Kemp et al.

      Filed at Springfield March 28, 1888.

    1. Assignment oe ebbob—necessity thereof. Where the refusal of the trial court to transfer a cause to the United States court is not assigned for error, the decision of the trial court in that respect will not be considered.
    2. Rescission oe contbaot—for fraud. Fraud vitiates everything, and equity will grant relief against all contracts procured by fraud, if its aid is invoked in apt time; and when parties conspire together to perpetrate-a fraud upon another, and thereby obtain the title to real estate, a court of equity will set aside the conveyance and restore the title.

      Appeal from the Circuit Court of McLean county; the Hon. Alfred Sample, Judge, presiding.
    Mr. Louis Munson, for the appellants.
    Mr. W. S. Cox, and Messrs. Tipton & Beaver, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by Amos Kemp, America Kemp and Minnie Whitaker, in the circuit court of McLean county, against Wilmot Castle, Arthur Castle and L. Dow Kinney. The principal relief sought by the bill is, that two deeds made by complainants to Wilmot and Arthur Castle, for certain real property situated in the city of Bloomington and in the village of McLean, be set aside and declared void, and be delivered up and cancelled, which deeds had been made in pursuance of a contract between the parties, complainants and defendants, and which contract, it is alleged, was procured by the fraud practiced by defendants upon complainants, and so it is charged the deeds were wrongfully obtained from complainants, without any consideration whatever. The original bill was twice amended, by setting 'forth more in detail the acts of defendants alleged to be fraudulent and wrongful, and upon which complainants relied, and in doing so they charge they were overreached in the transactions, and defrauded. The answers of defendants are not under oath, that having been waived, and although all wrongful and fraudulent conduct is expressly denied, they do little more than put at issue the matters alleged in the original and amended bills against defendants. On the final hearing of the cause, the circuit court .decreed relief- to complainants substantially as it was asked to do, and defendants Wilmot Castle and Arthur Castle bring the .case to this court on appeal. L. Dow Kinney did not join in the appeal, nor has he -assigned error on the record.

It is said in argument, it was error in the circuit court not to grant the prayer of the petition of defendants assigning error on the record to remove the cause to the Federal court. The decision of the court, in that respect, does not.appear to be assigned for error, and, of course, the point made can not be considered. All the questions affecting the merits of the controversy are simply questions of fact, and need no extended consideration.

The circuit court found, among other things, the principal fact which entitled complainants to relief,—that is, that the title to the property in controversy was obtained from complainants by fraud on the part of defendants, and that defendants conspired together to perpetrate a fraud upon complainants. On the hypothesis the evidence sustains this finding of the court, it is quite clear the law would warrant the relief granted, and that it would have been inequitable to deny it.

It is a familiar principle, that fraud vitiates everything it • touches, and that equity will grant relief against all contracts, procured by fraud, if its aid is invoked in apt time. The only question, then, that can arise, is whether the making of the-contract of December 29,1884, and of the deeds for the property in controversy made in pursuance of that contract, was procured by the fraud and covin of defendants. That is much more a question of fact than of law. As has been seen, the trial court found the whole transaction was fraudulent, and that defendants conspired together to defraud complainants, and in that way secured the making of the deeds to valuable property. The evidence bearing on the issues produced by the pleadings is quite voluminous, and is conflicting to that degree that much of it is irreconcilable. On the whole evidence considered, this court can not say the finding of the trial court is not sufficiently sustained. There is some evidence tending to show the transaction was a mere scheme, in which all of defendants participated, to overreach complainants, and procure the deeds for their property without any consideration whatever,—at least the circuit court has found, in substance, that such is the fact, and this court would not feel justified in saying its findings in that respect are not fully warranted by the evidence.

The decree seems to be just and equitable, under all the circumstances, and must be affirmed.

Decree affirmed.


author: Per Curiam:

text:
    Benjamin Poyer v. The Village of Des Plaines.

      Filed at Ottawa March 26, 1888.

      1. Continuance—by operation of law—presumption, when a case remains on the docket. All causes upon the docket of the trial court not otherwise disposed of at the end of the term, are, by operation of law, continued until the next term thereof.
    2. Where a cause is regularly upon the docket at a term, and not disposed of, and at a subsequent term is still on the docket and heard by the court as a cause pending therein, it will be presumed, in the absence of anything showing the contrary, that it has properly remained upon the docket, and been continued, by operation of law, from term to term.
    This cause was before the court at a former term, when the judgment of the Appellate Court was affirmed. (Poyer v. Village of Des Plaines, 123 Ill. 111.) The appellant, Poyer, now moves the court to correct an alleged error in the rendering of that judgment and decision, and to reverse the judgment below, and remand the cause.
    Mr. John Gibbons, for the motion.
    Messrs. Stiles & Lewis, and Mr. C. S. Cutting, contra.

   Per Curiam:

The court is asked, on its own motion, to correct a supposed error made in the rendition of its judgment and decision, and to reverse the judgment below and remand the cause. The attention of the court is directed to statements in the opinion filed herein, that the order dissolving the injunction was accompanied with an order, duly entered, granting leave to the defendants to file suggestion of damages, and that the cause was continued until the next term of the court, and thereafter regularly continued, from term to term, until such suggestions were filed, under the leave granted, and was .again continued, from term to term, until a hearing was had thereon, whereas it is said the record fails to show any orders of continuance at or after the term at which the injunction was dissolved. It is urged that this court has made a mistake as to the fact of the cause having been continued in the circuit court, and there being no orders of continuance, the circuit court lost jurisdiction to enter the decree for damages, and the judgment of affirmance in this court is therefore erroneous.

There was no mistake of fact. All causes upon the docket of the circuit court, not otherwise disposed of at the end of the term of court, are, by operation of law, continued until the next term thereof. And where, as here, a cause is regularly upon such docket at a term, and undisposed of, and at a subsequent term is still on the docket, and heard by the court as a cause pending in court, the presumption, in the absence of anything showing the contrary, is, that it has properly remained upon the docket undisposed of, and therefore continued, by operation of law, from term to term. No suggestion was made in the lower court, nor is it insisted now, that the case was not regularly upon the docket, pending, upon the leave granted. The objection then made was, that the court had no jurisdiction to assess damages upon the suggestions, because they were not filed during the term at which the injunction was dissolved. No special order was necessary to the continuance of the cause. It was, by operation of law, regularly continued, with precisely the same effect as if the orders had been entered at each term.

The motion must be denied.

Motion denied.


author: Mr. Justice Craig

text:
    H. C. Agnew et al. v. A. J. Brall.

      Filed at Springfield March 28, 1888.

      1. Municipal oobpobations— limitation of powers. A city council in the discharge of its duties must act within the bounds prescribed by its charter, and if it exceeds the powers conferred by the charter, its acts will be nugatory.
    2. Same—powers as to disposition of corporate property-—and the settlement of claims. A city council, under the general Incorporation law, has no power to squander or give away the funds or property of the incorporation, but all the property within their control, belonging to the corporation, must be honestly applied to the uses and purposes specified in the law relating to the subject. The council has no power to sell or dispose of the corporate property without a consideration, nor has it the right to discharge -a debt without payment, which may be held against parties who are solvent and responsible, where no controversy exists as to the validity of the indebtedness.
    3. A municipal corporation has the power, however, to settle doubtful and disputed claims against it of in its favor. This power results from the capacity and power of suing and being sued, and to prosecute and defend suits.
    4. A judgment in favor of a city is not to be regarded final so long as ■the defendant therein has the right of appeal; and at any time before the right of appeal expires, the city council may lawfully compromise the case, and settle the claim by the acceptance of a less sum than that of the judgment, and the city will be bound by such settlement.
    Writ of Error to the Appellate Court for the Third Dis-' trict;—heard in that court on writ of error to the Circuit Court of McDonough county; the Hon. Charles J. Scofield, Judge, presiding.
    Mr. Geo. D. Tunnicliff, Mr. L. Y. Sherman, and Mr. H. C. Agnew, for the plaintiffs in error:
    The city, being a creature of the legislative will, can exercise only such powers as the statute has conferred upon it. Neither the corporation nor any of its officers can do any act, make any contract or incur any liability not authorized by its-organic act, and any act not so authorized is void. Dillon on Mun. Corp. sec. 55; Cook County v. McCrea, 93 Ill. 236 Zanone v. Mound City, 103 id. 552; People v. Village of Crotty, 93 id. 180.
    The city may not release a chose in action or judgment in its favor. Const, sec. 25, art. 4; Petersburg v. Mappin, 14 Ill. 193; Milhau v. Sharp, 15 Barb. 193; Sherlock v. Village of Winnetka, 59 Ill. 398; Allen v. Marion, 11 Allen, 108.
    Mr. James M. Blazer, for the defendant in error:
    A municipal corporation has authority, through its council, to settle suits. A city “has power to settle disputed claims against it, and an agreement to pay this is not void for want of consideration. If it has obtained a contract which, by mistake or a change of circumstances, it deems to operate oppressively upon the other party,-an agreement to make an additional compensation, or to modify or -annul it, is not invalid for want of consideration.”
    Where a city has a judgment from which an appeal is about to be taken, the council may, if- done in good faith, cancel the judgment on the payment of costs, and such an agreement, when executed, is binding upon the corporation. Dillon on Mun. Corp. sec. 398, note 4; Petersburg v. Mappin, 14 Ill. 193.
    ■ The law vests the council with discretion in such matters, which it is to exercise for the best interests of the corporation. We think the council of said city has exercised its best judgment in this matter, and thought it to be the best interests of the city to settle this suit in the way in which it did. Harms v. Fitzgerald, 1 Bradw. 325.
    The doctrine oí 'estoppel in pais applies to municipal corporations. Logan County v. City of Lincoln, 81 Ill. 156; Martel v. East St. Louis, 94 id. 67; Railroad Co. v. City of Joliet, 79 id. 39; Dillon on Mun. Corp. sec. 533.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a hill to enjoin the collection of a judgment recovered by the city of Macomb, against A. J. Brail, before a justice of the peace, for the sum of $200. The judgment was rendered on the 20th day of March, 1883, for the violation of a city ordinance. On the third day of the following April, at a meeting of the city council of the city of Macomb, A. J. Brail presented a petition to that body, in which he requested that the judgment be released, upon the payment of $100 and the costs of suit. Upon the presentation of the petition, a motion was adopted by the city council to accept $100 and costs in satisfaction of the judgment, and the mayor was instructed to cancel the judgment on the justice’s docket upon receipt of the amount named. After the action of the city council, Brail paid the city $100, which passed into the city treasury. He also paid the costs, but the city attorney claimed that the city council had no right to accept a part of the judgment in satisfaction of the whole, and, disregarding the action of the city council, he sued out an execution, and placed it in the hands of an officer for the purpose of collecting the full amount of the judgment.

The city of Macomb was incorporated under the general Incorporation law of. the State, and the city council was clothed with such powers, and only such, as are conferred by the act of incorporation, or such as may be necessary to carry out the powers expressly granted. It is a 'plain proposition of law, and one well understood, that in the discharge of their duties a city council must act within the bounds prescribed by their charter, and if they exceed the powers conferred by the charter, such acts are nugatory. They have no power to squander or give away the funds or property of the incorporation, hut all property within their control, belonging to the incorporation, must be honestly applied to the uses and- purposes specified in the act of incorporation. The city council have no power to sell, or in any manner dispose of, the property of the corporation without consideration, and, in our opinion, they have no right to discharge a debt without payment, which may be held against parties who are solvent and 'responsible, where no controversy exists in regard to the validity and binding effect of the indebtedness. But a municipal corporation has power to settle disputed claims against it. (Dillon on Mun. Corp. sec. 398.) It may prosecute suits in favor of the ■corporation, and defend actions brought against it. It may sue and be sued, and the right to settle matters in litigation follows logically from the right to maintain or defend actions. 'This doctrine is well stated in Town of Petersburg v. Muppin, 14 Ill. 195, where it is said: “The power to prosecute suits in behalf of the corporation includes the power to settle the same. ■So the power to defend suits brought against the corporation, .gives them the same power of adjustment. They may compromise doubtful controversies to which the corporation is a party, either as plaintiff or defendant.”

A proper application of the principle announced, to the case under consideration, must settle and determine the equities of the case in favor of the complainant in the bill, as held in the Appellate Court. It is true that the city had obtained a judgment against Brail, but when he applied for a settlement, he had the right to appeal to the circuit court, where he could have a trial de novo, which, in the end, might result adversely to the ■corporation. At all events, he was entitled to an appeal, and entitled to have another trial. Moreover, it appears, from the ■evidence, that Brail, after the judgment was obtained, and before the settlement, employed attorneys to appeal from the judgment to the circuit court. He spoke to a person to sign a bond with him. He declared his intention to appeal, and did not appeal, for the reason that the city council agreed to accept $100 in satisfaction of the judgment. Under such circumstances, was the judgment to be regarded as a final, binding ■obligation,—one with which the city council had no power to interfere,—or was it in the nature of a pending controversy ?' We are of opinion that the transaction was one which might be regarded as in the nature of a pending controversy, and, as. such, the city council had the power to settle it. The judg- . ment could not be regarded as final while the right of appeal' existed in favor of the defendant, and the settlement was made, before the time for an appeal had expired. It may be true-that the city council did not release a part of the judgment, for the reason that Brail had the right of appeal, and for the purpose of preventing an appeal. But we do not regard that as material. What reason the members of the board may have had, or what they may have said on the subject, is of no. consequence. They knew at the time the action was taken, that Brail had the right to appeal, and this fact gave them the right to act, and what they may have said, or what they may have thought, can have no bearing on the question. After the suit was instituted, and before judgment, it is not denied that the city council might have settled the matter in controversy with Brail, and if an appeal had been taken, while the ease was pending in court that right of settlement would have still existed. This being so, upon what principle can it be said, that while the right of appeal existed the city council was powerless to interfere ? We see no reason why the council did not have the same power over the matter after judgment, and before the time for an appeal had expired, as it did before the judgment was rendered before the justice of the peace.

The judgment will be affirmed.

Judgment affirmed.

Mr. Justice Shops took no part in the consideration of this case.