author: Mr. Justice Wilkin

text:
    The Atchison, Topeka and Santa Fe Railroad Company v. Mark Schneider et al.

      Filed at Ottawa January 25, 1889.

    1. Eminent domain—elements of damages—in respect to a leasehold interest—evidence. In a proceeding for the condemnation of a leasehold interest in a lot or building used for business purposes by the tenant, the jury called to fix the compensation may properly take into consideration evidence tending to show the actual value of the leasehold interest of which the tenant is sought to be deprived; the actual injury to be suffered by him from the loss, destruction or depreciation of the improvements placed by him on the property specially adapted to his business, if any is shown; the reasonable cost of removal and of refitting in another locality for the further conduct of business, as shown by the evidence; and also any injury the jury may find, from the evidence, will result to the tenant by reason of the, unavoidable interruption of his business, incident to its present site and his establishment in a new location during the period of such interruption, if any is shown.
    2. On the trial, the petitioners offered to prove the rental value derived from similar premises in the near vicinity, which the court refused to allow. The proposed evidence failed to show the property inquired about was similar, or in the near vicinity: Held, no error in refusing the testimony so offered.
    3. In the same case, the tenant was allowed to state his average monthly profits during the year preceding the hearing: Held, that this was competent as tending to prove, with other testimony, the loss which he would incur by the suspension of business during the time necessarily consumed in moving to another place.
    4. Same—new trial—verdict against the evidence. While the personal view of the jiuy in a condemnation case is in the nature of evidence, and is to be considered by them in connection with other evidence, yet this, nor any other court, has ever held that the jury may ignore all the other evidence, and fix the compensation and damages directly contrary thereto. It is only when the evidence is conflicting, that the jury may draw their own conclusions from a personal view.
    5. Where there is a conflict of evidence, and the verdict is consistent with all the facts and circumstances in the case, it will not be set aside merely because the court may regard the weight of evidence in the record as against it; but when it clearly appears that the amount fixed is inconsistent with and contrary to all the proofs, it is the duty of the court to interfere, and submit the case to another jury.
    6. Same—new trial—excessive damages. Where the jury have evidently acted either from passion, prejudice or mistake, and award as compensation for a leasehold interest sought to be taken, a sum which, at first blush, strikes a fair mind as being entirely too large, the court ought to set aside their verdict and grant a new' trial.
    7. Same—right of entry pending appeal. Where a railway company' appeals to the Supreme Court from the judgment awarding compensation, it will be entitled to an order of the court permitting it to enter upon the property sought to be condemned, on filing its appeal bond in conformity with the order granting the appeal. It is error to refuse such order, but when the company otherwise obtains the order, as, upon the payment of the money into the county treasury, the error will not reverse.
    8. Section 13 of the Eminent Domain act gives the petitioner the right to enter upon the use of the property sought, pending an appeal from the assessment of compensation and damages, and section 12 of the act gives the right of appeal. The exercise of one of these rights is not a waiver of the other,—they are concurrent. It matters not that on a reversal and a second trial the buildings wrhich were upon the premises at the time of the first trial may have been removed, and thus prevent a personal view by the jury. A trial may be had without such view.
    Appeal from the Circuit Court of Cook county; the Hon. Eichard Tuthill, Judge, presiding.
    Messrs. Williams & Thompson, for the appellant:
    Evidence is admissible of actual sales (and equally, on principle, of actual rentals,) of property of like character, and adjoining or in the same neighborhood, with the property the value of which is in issue. Cemetery Association v. Railroad Co. 121 Ill. 200; Watson v. Railroad Co. 57 Wis. 332; Washburn v. Railroad Co. 59 id. 364; Benham v. Dunbar, 103 Mass. 365; Chandler v. Aqueduct Co. 122 id. 305; Shattuck v. Railroad Co. 6 Allen, 115.
    This court has repeatedly said, that possible profits are not a proper element of damages, and should not be taken as a measure of damages from interruption to business. Railway Co. v. Walsh, 106 Ill. 253; Dupuis v. Railway Co. 115 id. 101;
      De Buol v. Railway Co. 111 id. 505; Booker v. Railway Co. 101 id. 333; Railway Co. v. Dresel, 110 id. 89.
    Could the view of the premises by the jury warrant their verdict, which otherwise is not only unsupported by, but in excess of, all the evidence? The court has always been slow in disturbing a verdict when the jury viewed the premises. Mitchell v. Railroad Co. 85 Ill. 566; McReynolds v. Railway Co. 106 id. 152; Railroad Co. v. Blake, 116 id. 163.
    The court erred in denying the motion of appellant for an order permitting it to enter upon the use, for railroad purposes, of the estates of appellees, after the approval of the bond herein. Railway Co. v. Phelps, 125 Ill. 482.
    Mr. W. P. Black, for the appellees.
   Mr. Justice Wilkin

delivered the opinion of the Court:

This is a proceeding by appellant, against appellees, under chapter 47 of our statute, to condemn certain lots on State street, in the city of Chicago, for railroad purposes, on which appellees held leases. On the lots were two buildings, numbered 574 and 578, the first held by Schneider, at a rental of $60 per month, and the other by Hickey, at $110 per month. Both leases expired April 30, 1889. The building occupied by Schneider is a two-story frame, the lower story being used by him for the manufacture and sale of cigars, and the upper one sub-let for a dwelling, at $30 per month. The other building is a three-story brick, with basement. Hickey’s lease covered the basement, and first and second stories, in which he kept a saloon. At the time of the hearing, June 14, 1888, these leases had about ten and one-half months to run. The jury having heard the evidence produced by the respective parties, as to the value of these leasehold interests, and having examined the premises, made their report, giving to petitioner the right to take and appropriate the property, and allowing each of said appellees the sum of $1200 “as compensation for their respective leasehold interests, ” and the sum of $1300 to each “as compensation for inconvenience and cost of removal from the premises.” Judgments being entered on this report, appellant prayed an appeal, which was allowed on its filing bond in the sum of $10,000, which bond was duly presented and approved, whereupon appellant moved for an order allowing it to enter upon and use the said premises pending the appeal, but the motion was denied. Appellant then paid the amount of the judgments to the county treasurer, and on presentation of his receipt therefor the court granted the order of entry. A reversal is urged here mainly upon the ground that the verdict of the jury is unauthorized by the facts appearing in the record.

At the instance of appellees, the court instructed the jury as to the measure of compensation, as follows:

“The jury are further instructed, that in determining the amount of compensation to be awarded to the defendants, respectively, in this case, they may properly take into consideration all evidence tending to show the actual value of the leasehold interest to the respective defendants, of which it is proposed to deprive them; the actual loss to be suffered by these defendants, respectively, from the loss, destruction or depreciation of the improvements placed by them in the properties specially adapted to the conduct of their business, if any, shown by their evidence; the reasonable costs of removal and of refitting in other localities for the further conduct of business, as shown by the evidence; and also any injury that the jury may find, from the evidence, will result to said defendants, respectively, by reason of the unavoidable interruption of their business, incident to their removal from their present site, and their establishing in new locations during the period of such interruption, if any, shown by the evidence.”

Substantially the same rule was announced in instructions asked by appellant. No controversy can therefore be raised here as to that question, and, accepting it as a fair legal guide to the jury in fixing the amount which appellees should be paid as just compensation for being deprived of their property, it is impossible to escape the conviction, that the verdict in this case, on which judgments were entered, is the result of prejudice, inadvertence or mistake. In the first place, it must strike the impartial mind as remarkable, that under leases so essentially different as to the property leased, the amounts of rent reserved, and the uses to which the buildings were appropriated, the leasehold interests should be of precisely the same value, and that the cost and inconvenience of removal in such case should be exactly the same. But the evidence, instead of explaining or reconciling this apparent inconsistency, only makes it more glaring, and leaves no doubt that the amounts were arbitrarily fixed by the jury, regardless of the proofs.

Appellant introduced four witnesses as to the value of the leasehold interests, each of whom testified that the rent reserved, viz., $60 in the one case and $110 in the other, was the full rental value of the premises, and that neither wras worth more than the said amounts agreed to be paid. Appellees both testified in their own behalf, but neither contradicted appellant’s witnesses on that subject, and only one witness introduced by them does so, and he only as to the lease of Hickey, which, he says, in his judgment, is worth $200 per month, or a bonus of $90 per month. Appellant also introduced two witnesses as to the cost of removal. One of these swears that the cost to Schneider to move his fixtures and put them up in another building, replacing what might be necessary with new material, would be $235.40, and to Hickey, $161. The other estimates the cost to Schneider at $263.50, and to Hickey at $148.50. While the evidence of appellees, and witnesses introduced by them, on this element of damages, would justify a finding of much larger sums than those fixed by either of said witnesses, it is impossible to so construe their evidence as to sustain the finding of $1300 reported by the jury. In fact, by their own testimony, Schneider’s expense for furniture and fixing up his establishment was only between $700 and $800, and that of Hickey about $1200, in which last amount he admits is included the cost of his moving into the building, and a pool table, for which he paid $375.

The verdict of the jury is not only contrary to the weight of the testimony, but manifestly against all the evidence, and this is not denied or controverted by counsel for appellees. It seems, however, that it was sustained below, on the theory that the jury might legally base its report as to the amount of compensation to be paid, on their personal examination of the premises, without regard to the testimony of witnesses, and this view is now urged in support of the judgment below, and is thought to be sustained by decisions of this court. While it is true that we have frequently held that the personal examination by the jury in such cases is in the nature of evidence, and is to be considered by them in connection with all other evidence in the case, and that an assessment will not be set aside merely because it may differ in amount from the preponderance of the evidence appearing in the record, it has not been held by this or any other court, so far as we are .aware, that all the evidence may be ignored, and the amount fixed directly contrary thereto. In Mitchell et al. v. Illinois and St. Louis Railroad Co. 85 Ill. 567, it is said: “As to the damages sustained, the evidence is conflicting. Under the statute the jury had a right, to view the premises, and draw their own conclusion from such observation, as well as from other testimony offered in the case.” In Chicago and Iowa Railroad Co. v. Hopkins et al. 90 Ill. 323, after stating that the evidence was conflicting, and upon that preserved in the record the inclination might be to hold the assessment too large, but that the jury personally examined the locus in quo, it is said: “It is the evident intention of the law, such personal examination by the jury is in the nature of evidence to be considered by them, and to what extent they were influenced by such examination in their assessment it is impossible to tell. The result of the personal investigation may have been such as to have fully justified the assessment made, even if it was clear the preponderance of the evidence preserved in the record was against so large an amount.” In Green v. City of Chicago, 97 Ill. 373, we said: “Inasmuch as the value of the land taken is purely a question of fact, to be determined by the jury from all the particular circumstances in each case, it is believed no general rule can be laid down applicable alike to all cases. * * * Where, in any case, the different theories and processes submitted by witnesses for ascertaining the value of property taken, lead to widely different results, and the opinions of the witnesses themselves are conflicting and wholly irreconcilable, and there is sufficient evidence upon which the verdict may be sustained, the court ought not to disturb it, unless it is manifest, from all the circumstances in the ease, the jury adopted a false theory in arriving at their conclusion, in which event the verdict ought to be set aside.” So in McReynolds et al. v. Baltimore and Ohio Railway Co. 106 Ill. 156, it was again said: “The opinions .of witnesses here were extremely conflicting. The jury went upon the premises, and saw for themselves the situation,”—and what was said in Chicago and lowa Railroad Co. v. Hopkins et al. supra, is repeated with approval. To the same effect is the language used in Chicago and Evanston Railroad Co. v. Blake, 116 Ill. 166. While there is language used in the instruction commented upon in Kiernan v. Chicago, Santa Fe and California Railway Co. which would seem to go further, and authorize the jury to fix the amount independent of the sworn testimony, yet the instruction, taken as a whole, was thought to be in accord with the decisions above referred to, and was approved on their authority.

The oath which the jury is required to take by section 8, as well as the language used in section 9, of the Eminent Domain act, clearly shows that the sworn testimony shall not be disregarded in fixing the amount of the assessment, and the rule deducible from all the decisions of this court is, that where there is a conflict of evidence, and the verdict is consistent with all the facts and circumstances in the ease, it will not be set aside merely because the court may regard the weight of evidence in the record against it; but when it clearly appears that the amount fixed is wholly inconsistent with and contrary to all the proofs, it is the duty of the court to interfere, and re-submit the case to another jury. In this view of the law it was error to overrule appellant’s motion for a new trial.

It is also urged as a ground of reversal, that the court below refused to admit evidence of actual rentals derived from similar premises in the near vicinity of those in question. The evidence fails to show that the property inquired about was similar and in the near vicinity to that of appellees. There was therefore no error in refusing the testimony offered.

Both Hickey and Schneider were allowed, over objection by appellant, to state their average monthly profits during the year preceding the hearing, and this is also urged as error. It appears from the record, that this evidence was held competent, as tending to prove, with other testimony, the loss which would be incurred by the suspension of business during the time necessarily consumed in moving, and, thus limited, we see no objection to it.

The case of Chicago, Santa Fe and California Railway Co. v. Phelps, 125 Ill. 482, is decisive of the right of appellant to an order permitting it to enter upon the premises sought to be condemned, on filing its appeal bond in conformity with the order granting an appeal, and the court below erred in refusing to make it; but as the same purpose was accomplished by paying the money to the county treasurer, the judgment would not be reversed for that error.

Counsel for appellees maintains, that by actually taking possession of the buildings in question, and especially by a removal of one of them and permitting the other to stand vacant and fall into ruin, appellant has put it out of the power of the court to grant a view of the premises as they were when occupied by appellees, and therefore another trial can not be had, as contemplated by the statute, and appellant should for that reason be held to have waived its right to insist upon a reversal and new trial. Assuming that the facts exist as stated, (of which there is no proof in the record,) and that the question is fairly before us for decision, we have no hesitancy in holding the position untenable. Section 13 of the act, as construed in Chicago, Santa Fe and California Railway Co. v. Phelps, supra, gives appellant “the right to enter upon the use of the property” pending the appeal. Section 12 of the same act gives the right of appeal. The position of counsel amounts to saying, that the exercise of one of these rights is a waiver of the other, whereas, by the very terms of the statute, they are concurrent. A personal examination of premises to be condemned, by the jury, may be desirable in most cases, but is not essential to a trial, under the statute.

An attempt is made to justify the amounts found by the jury by assuming that something was allowed to each of appellants for the good will of their business. It is a sufficient answer to this position to say, that all evidence on that subject offered by appellees was excluded by the court below. Besides, the report of the jury shows that no such allowance was made.

There is no view of this record that we have been able to discover, which will justify an affirmance of the judgment below. It is clear that the sum of $2500 to each of appellees, for the unexpired term of their leases, and cost and inconvenience of moving, is unreasonable, and unauthorized by the proof,—is largely in excess of just compensation. The judgment of the circuit court will therefore be reversed, and the cause remanded for further proceedings. ,

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    The New York and Chicago Grain and Stock Exchange v. The Board of Trade of the City of Chicago et al.

      Filed at Ottawa January 25, 1889.

    1; Board of Trade of Chicago—a private corporation—character of its dealings, as of a private and public nature. Tile Board of Trade of the city of Chicago is a private corporation, and was incorporated for the purpose of affording facilities to its members in doing business with each other. In their transactions upon the floor of the exchange they deal as principals with each other, but in respect to others than members of the board they are brokers and commission merchants for the producers, consumers, shippers and merchants whom they represent.
    .2. Same—market quotations and reports—how far considered of public interest, and subject to public control—and herein, of private property being charged with a public duty. The market news of the proceedings, etc., of the Chicago Board of Trade, is a species of property, and if the statistics with reference to the individual business of the members of the association, and the aggregate business of its members, had from the inception of the transactions of the board been gathered and compiled at the expense of its own members, it might be that it would have been strictly private property, held in trust by the board for the use and benefit of such members, and wholly free from any public interest therein.
    3. The fact, however, that the Board of Trade is a private corporation, and that the dealings between its members are private business, such as is transacted between dry goods, grocery and commission merchants, and that the statistics of these dealings collected by agents of the board are private property, is not conclusive that such statistics are not charged with a public interest, and that there is no duty due the public in respect thereto.
    4. Where private property is devoted to a public use, and becomes affected with a public interest, it ceases to be juris privati only, and is subject to public regulation. Property becomes clothed with a public interest when used in such a manner as to make it of public consequence, and affect the community at large.
    5. "When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must, to the extent of such interest, submit to be controlled by the public for the common good, as long as he maintains the use. He may withdraw his grant by discontinuing the use. •

      6. So assuming the market quotations and reports of the Board of Trade are not only property, but also private property, of the board, yet if they have been so used by the board, and by the telegraph companies, with the knowledge and consent of the board, as to become affected with a public interest, then they are subject to such public regulation by the legislature and the courts as is necessary to prevent injury to such public interest. In this respect there is no difference between property of private corporations and individuals.
    7. Same—unjust discriminations—in supplying market quotations and reports. This doctrine, as applied to the matter of the market quotations and reports of the board, forbids that a monopoly shall be made of them, by furnishing them to some and refusing them as to others who are equally willing to pay for them and be governed by all reasonable rules and regulations, and such doctrine will prevent the board, or the telegraph companies acting with it, from unjustly discriminating in respect to the persons who will be allowed to receive them.
    8. The Chicago Board of Trade having so conducted its affairs for many years as to create a standard market for agricultural products, and by acting in concert or combination with telegraph companies, and thereby having built up a system for the instantaneous and continuous indication of that market and its fluctuations, until the public, and all persons dealing in such products, have conformed to this system, and until, in consequence of the general use of that system and the usage of trade, such instantaneous market quotations have become necessary to the safe and successful transaction of business, such system will have become affected with a public interest, and such Board of Trade can not thereafter, in the furnishing of such quotations, make any unjust discrimination between persons whiling to pay therefor and to conform to all reasonable rules and regulations.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John C. Bagby, Judge, presiding.
    Messrs. Bisbee, Ahrens & Decker, for the appellant:
    When private property is used in such a manner as that the public interest is affected by it, then, reflexively, the property or franchise, or whatever it may be, is also affected with a public interest, and ceases to be juris privati. Munn v. Illinois, 94 U. S. 113; Hocton v. State, 105 Ind. 250; State v. Telegraph Co. 17 Neb. 126; Telegraph Co. v. Telegraph Co. 96 U. S. 9; State v. Telegraph Co. 36 Ohio St. 296; 23 Fed. Rep. 239; Telegraph Co. v. Telegraph Co. 44 Am. Rep. 237; Allmett v. Inglis, 12 East, 527.
    The property, however transferred by the Board of Trade to the telegraph company, and however transmitted by the telegraph company, is property which, from its very nature, the public has an interest in, because, first, it has been created in such a manner as to make it a matter of public interest ; and second, the Board of Trade has allowed it to be used in such a way as to make it a matter of public interest.
    Mr. Sidney Smith, for the appellees :
    The Board of Trade is a private corporation. It was incorporated, not for the purpose of conducting business as a corporation, but for the purpose of affording better facilities to members in the conduct of their private business and dealings with each other. It is authorized to establish rules for the management of its business. Under this power, section 20 of rule 4 was adopted. If this rule is valid, that is an end to this suit. It is reasonable, and germane to the purposes for which the board was created. Such rules are repeatedly held good. People v. Board of Trade, 45 Ill. 112; 80 id. 134; Pitcher v. Board of Trade, 121 id. 412.
    Under this rule, the market news and statistics are collected and compiled at the expense of the members of this association, and are as much their property, in their associated capacity, as is the exchange hall itself in which their business is transacted. If authority be needed in support of this self-evident proposition, it is to be found in Kiernan v. Manhattan Quotation Co. 50 How. Pr. 194, and cases cited.
    The Board of Trade of the city of Chicago has the legal right to control its own market news and these statistics, gathered and compiled at its own cost and expense from funds contributed by its members, and to determine what telegraphic dispatches touching the same it will send directly from the floor of its exchange during business hours, and to whom they shall be sent, or whether it will send any dispatches whatever. Stock Exchange v. Board of Trade, 15 Fed. Rep. 817; 22 id. 23; Bryant v. Telegraph Co. 17 id. 826.
   Mr. Justice Baker

delivered the opinion of the Court:

The objects of the Board of Trade of the city of Chicago are, “to maintain a commercial exchange, and to promote uniformity in the customs and usages of merchants; to inculcate principles of justice and equity in trade; to facilitate the speedy adjustment of business disputes; to acquire and to disseminate valuable commercial and economical information, and, generally, to secure to its members the benefits of co-operation in the furtherance of their legitimate pursuits.” The association existed for some years prior to the 18tli day of February, 1859, as a mere voluntary and unincorporated society of persons engaged in the grain, produce and commission .business, and at that date it was incorporated by a special act of the General Assembly of the State of Illinois, and was given power and authority to do and carry on business such as is usual in the management of boards of trade or chambers of commerce, and the specific powers enumerated in the act of incorporation. Among the express powers delegated was authority “to establish such rules, regulations and by-laws for the management of their business, and the mode in which it shall be transacted, as they may think proper.”

The growth and progress of the association in commercial influence has been commensurate with that of the city in which it is located. The initiation fee for admission to it is $10,000, and it has some two thousand members. It maintains an exchange hall, upon the floors of which, between certain prescribed hours of each business day, the business of its members is transacted. It has been said, and with much show of reason, that the floors of this exchange hall stand in the gate-' way of commerce. The members of the board meet thereon to buy and sell; their trading is by open viva voce bidding; and when a purchase and sale is made, memoranda thereof are taken by both parties to the transaction. Four-fifths of the grain and provisions produced in the States and territories of the Northwest are bought and sold in this market, and the business there done is so vast in its proportions that it fixes the market prices of grain, breadstuffs and meats for the extensive territory that is tributary to Chicago, and seriously affects, and to a considerable extent controls, the values of the necessaries of life throughout the United States and the civilized world.

For many years prior to August, 1883, the Board of Trade permitted the Western Union Telegraph Company, by its agents and servants in that behalf, to occupy and use its exchange hall, and there collect and transmit, without any restriction whatever, reports of the dealings, fluctuations and changes of the market on the board. This information was sent by telegraph throughout the country, and delivered, without discrimination, to all persons who desired and would pay for the same. There were numerous customers of this commercial news department of the business of the telegraph company, and they were scattered over the land, wherever the business of buying and selling grain and provisions was followed. The Western Union Telegraph Company then had, and still has, a lease upon and control of the Gold and Stock Telegraph Company, which latter corporation, in turn, had and has a monopoly of the telegraphic instruments known as “tickers.” Telegraphic circuits were established by the Western Union Telegraph Company in Chicago, and in other principal cities, and by means of Morse instruments and these tickers, market information passed to every office and place of business connected by wire with one of these circuits, and was automatically registered, so that every merchant or dealer provided with these instrumentalities, wherever his place of business might be, -was instantaneously, and from minute to minute, and from hour to hour, during the business sessions of the Board of Trade, informed of all fluctuations and changes in the market prices of grain and other products, as they occurred.

On the 29th of August, 1883, the Board of Trade amended its standing rules by adopting what is known as section 20 of rule 4, which is as follows:

“The board of directors shall provide An efficient corps of market reporters, whose duty it shall be, under such regulations as may be prescribed for their government, to ascertain the current market prices of such commodities as are dealt in by members of the association, during the hours for trading prescribed by these rules, the reporting of which may be desired by any considerable number of correspondents, and also all changes which may occur in the same from time to time; such reports to be frequently communicated by telegraph to such approved correspondents in the city of Chicago, or elsewhere, as may desire the same, and are willing to pay necessary charges for compiling and transmitting them by telegraph, under such arrangements as may be made by the board of directors with any telegraph company for the performance of the service of transmission. The forwarding of such reports to any particular individual, firm or corporation shall be only on the condition that it is an accommodation service, in which the Board of Trade assumes no responsibility beyond reasonable care in their compilation, and one that may be performed at the pleasure of the board, or, if performed, may be discontinued or withheld, with or without previous notice. Any individual, firm or corporation, before being supplied with the reports herein provided for, shall make an application for the same, in such form or manner as may be authorized by the board of directors, or by a committee appointed by it for that purpose, before any reports are forwarded to the applicants. A list of all correspondents to whom such reports are sent shall be kept on file in the office of the secretary of the board, and shall be subject to the inspection of any member desiring to do so.”

Since the adoption of this rule, the board, under a contract or arrangement with the Western Union Telegraph Company, has employed a corps of market reporters, who collect and transmit from the floor of the exchange, over a wire owned by it, the occurrences on the floor of the exchange, showing the fluctuations and changes of the market right along, just as they transpire during the day, to the central office of the said telegraph company. From this office such information is immediately re-transmitted over the ticker circuits in the city, and over telegraph wires to different points.

The expense to the board of its corps of market reporters is $10,000 a year, and the telegraph company pays to the board $750 a month, making $9000 per annum, for the market quotations, and the telegraph company collects compensation from the persons receiving the dispatches or connected with the ticker circuits. The board furnishes to the telegraph company, from day to day, a list of the names of the approved correspondents, some thirteen hundred or fourteen hundred in number, to whom, and to whom only, the market reports are to be transmitted, and they are sent to these designated parties only. The theory of the Board of Trade and of the telegraph companies is, that this commercial information, starting with the opening of business in the morning, and giving the transactions on the floors of the exchange, and the fluctuations and changes in the market from minute to minute and hour to hour, until the close of the business day, is a private telegraphic message sent by the board to each of the persons designated in the list furnished in the morning; and on this theory, the name of an officer of the board is added to the information collected, and sent to the telegraph company, as evidence that the matter which has been sent in sections during the day is a telegraphic dispatch sent by authority of the Board of Trade, as its own private message.

The appellant corporation, the New York and Chicago Grain and Stock Exchange, is organized under the laws of the State of Illinois, for the purpose of doing business in buying and se'ling grain on commission, and on the 29th of April, 1885, its place of business was at No. 140 Monroe street, Chicago, and it had in use at said place, in its business of buying and selling grain on commission, one Morse instrument and two tickers, which were connected with the wires of the Western Union Telegraph Company, and by means of which the market information in relation to -the changes and fluctuations of the market on the Board of Trade of Chicago was transmitted and delivered to it instantaneously and continuously during business hours, and which information it was using in and about its business. At and before the time of the filing of the bill of complaint herein, the appellant, then being in receipt of the market information in respect to the transactions on the Board of Trade, demanded the continuance of such information, and offered to pay for the same, and submit to all reasonable requirements in relation thereto. Appellees, however, insisted upon their right to remove the telegraphic instruments and sever the wire connecting its place of business with the ticker circuit. " They threatened and were about to deprive appellant of the use of the wire and instruments, and withhold from it the market reports, and thereupon appellant exhibited this bill of complaint, and upon the ground the contemplated conduct and proceedings of appellees, the Board of Trade and said telegraph companies, would be disastrous to its business, and would produce irremediable inj ury and damage, obtained a preliminary injunction in the circuit court of Cook county. At a subsequent term of the court the cause was heard, on bill, answers, replications and proofs, and the court found that appellant was not entitled to the relief prayed for in its bill, and said bill was dismissed for want of equity, and a decree rendered against appellant for costs. This finding and decree was afterward affirmed in the Appellate Court for the First District, and the cause is now here on appeal from the judgment of the latter court.

The contention of the Board of Trade is, that it is strictly a private corporation, and that both the individual and aggregate business of its members is essentially private business, and that the market news and statistics collected and compiled at the expense of the association are the private property of the association, and that it has a legal right to control such market news and statistics, and determine what telegraphic dispatches touching the same it will send directly from the floor of its exchange during business hours, and to whom they shall be sent, or whether it will send any such dispatches whatever. The Board of Trade is a private corporation, and it was incorporated for the purpose of affording facilities to its members in doing business with each other. In their transactions upon the floors of the exchange they deal as principals with each other, but in respect to the outside world they are brokers and commission merchants for the producers, consumers, shippers and merchants whom they represent. For many years the board has so used its franchises, and its members have so conducted their business, as that it has become of vast commercial influence, and fixes the market values of grain and agricultural products for a large territory, -and the fluctuations in prices upon its floors powerfully affect the market prices of the necessaries of life throughout the country and the world. The great power and influence which .the board possesses in dictating market values, are owing to the" vast aggregation of products which are drawn to its portals for a market, and are bought and sold upon its floors, and which pay tribute and toll, in the shape of commissions, to its members. The great bulk of this business,—though in form, and as between the members, the mere private and individual dealings of such members,—is in reality the business of the numerous producers, consumers, merchants and shippers for and on behalf of whom these members deal. A potential factor in attracting this accumulation of business to the' halls of the exchange, and in vesting the board with this power to regulate and determine the market prices of grain and provisions, is the fact that many years ago the board admitted and invited the telegraph companies, which are quasi public corporations, to the floors of the exchange, and permitted and encouraged them to gather market quotations, showing the changes and fluctuations in the prices of the various products as they occurred, and send instantaneous information from the floors of the board, by means of telegraph lines and instruments, to all the principal towns and cities, and by means of ticker circuits to the places of business of all persons desirous of such information, which information was furnished to all persons and corporations, without discrimination, who were willing to receive and pay for the same. In this way the business of the country in buying and selling agricultural products has been brought under the control .of the market values for such products as-fixed and determined on the Board of Trade, and the business of dealing in such products has been brought to conform to the method of receiving instantaneous and continuous market reports, inaugurated, and for years persisted in, by the Board of Trade and the telegraph companies. This market news is a species of property, and if the statistics with reference to the individual business of the members of the association, and the aggregate business of its members, had from the start been gathered and compiled at the expense of its members, and for their sole use, it may be it would have been strictly private property held in trust by the board for the use and benefit of such members, and wholly free from any public interest therein. But the, board did not so exercise its franchises and so conduct its business, but admitted the telegraph companies to the floor of its exchange, and permitted and encouraged them, from day to day and year after year, to gather these statistics of the dealings on the board, and telegraph them, immediately as they were made, throughout the land, to whomsoever would pay for such information, until the business of the country had adapted itself to these means and appliances, and the-point was reached when the quotations upon the board were puissant to determine the market values of the products of the country, and all persons dealing in such products could not, without the knowledge and benefit of these immediate-quotations, intelligently and safely so deal.

The facts that the Board of Trade is a private corporation, and that the dealings between its members are private business, such as is transacted between dry goods, grocery and 'commission merchants, and that the statistics of these dealings, collected as we have stated, are private property, are not conclusive that such statistics are not charged with a public interest, and that there is no duty due the public in respect thereto. In the case of Munn v. People of Illinois, 94 U. S. 113, the Supreme Court of the United States recognized and followed the doctrine, that when private property is devoted to a public use, and.becomes affected with a public interest, it ceases to be juris privati only, and is subject to public regulation. The court there said: “Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.”

Assuming these market quotations and reports are property, and the private property of the Board of Trade, yet if they have been so used by the board, and by the telegraph companies with the knowledge and consent of the board, as to become affected with a public interest, then they are subject to such public regulation by the legislature and the courts as is necessary to prevent injury to such public interest. The doctrine in question has application both to the property of individuals and of corporations, and it is therefore immaterial that any such corporation may be a mere private corporation. If the interest is public, then it is necessarily, to all alike, common to all, and upon equal terms. The doctrine, as applied to the matter of these market quotations, would forbid that a monopoly should be made of them by furnishing them to some and refusing them to others who are equally willing to pay for them and be governed by all reasonable rules and regulations, and would prevent the Board of Trade or the telegraph companies from unjustly discriminating in respect to the parties who will be allowed to receive them.

The market information here involved is not collected by the board merely for the use of the members of the association. Eor many years it was gathered and disseminated by the telegraph companies, and sent to all alike who would pay for it, wholly regardless of any question of membership in the board. The change that has been made by section 20 of rule 4, in respect to this commercial news department, seems to be more colorable than substantial, and appears to be intended merely to enable the board to make a monopoly of such news. At first the telegraph companies, by their paid agents, gathered the statistics, and telegraphed them from the floors of the exchange. Now, the board appoints and pays the agents who collect the statistics and transmit them to the central telegraph office of the Western Union Telegraph Company, from whence they are distributed to the approved correspondents. But nine-tenths of the expense of this service of collecting the market reports is refunded to the board by the telegraph company.

The question here is not one of withholding altogether instantaneous quotations and information respecting the prices at which grain and provisions are being sold upon the market of the exchange, nor one of discriminating between its own members and such persons as are not members, in giving such information. Before the board itself assumed to control the sending of this news, no discrimination was made in distributing it between those who were and those who were not members of the board, and since the change was made, a very large proportion of the approved correspondents are not members, and the rule contemplates that persons other than members should be such correspondents. The question is, can the board so conduct its affairs for a long term of years as to create a standard market for agricultural products, and, acting in concert or combination with the telegraph companies, build up a great system for the instantaneous and continuous indication of that market and its fluctuations, until the public and all persons dealing in such products conform their business to this system, and until, by the usage and custom of merchants, thus advanced by the methods adopted by the board and telegraph companies, such instantaneous market quotations become necessary to the successful and safe transaction of business, and until such system has become impressed and affected with a public interest, and then be allowed to discriminate between persons and parties, and, where all alike are willing to conform to reasonable rules and requirements, and pay for the information desired, say that one shall and another shall not have such information. If the board has such right, and these corporations are lawfully permitted so to do, then they have the power to create monopolies, and dictate who shall deal in the agricultural products of the country, and at will impoverish or enrich merchants, shippers and producers.

It is vain to say that the ordinary newspaper reports of the state of the market are all that are necessary to legitimate dealers in grain and provisions. The business of the country has outgrown such condition, and this very largely through the methods adopted and introduced by appellees themselves. The fact that fourteen hundred persons, firms and corporations are in receipt of these instantaneous market reports, and are willing to pay therefor the large fees and charges demanded of them for the receipt of the same, is proof positive that a business advantage is gained by immediate knowledge of the condition of the market. The persistent efforts of the Board of Trade itself to control these market reports are an indication of their estimate of their value.

We do not wish to be understood as holding that the Board •of Trade is bound, by law, to continue the business of collecting, and furnishing to the public, market quotations, or that it may not voluntarily abandon such businéss; but we hold, that so long as it continues to carry it on, either directly or indirectly, it must do so without unjust discrimination as to persons, and must furnish market quotations to all who may desire to obtain them for lawful purposes, and upon the same terms.

There is no question involved in this ease of gambling contracts, or of so-called “bucket shops.” There is no evidence in the record tending to show that appellant is engaged in a gambling business or dealing in “puts” and “calls,” and it is admitted that the business it is doing is not in violation of law.

We think the case made by the bill of complaint and the proofs brings it within the rule announced by the Supreme Court of the United States in Munn v. People of Illinois, supra, and, in our opinion, it was error in the circuit court to dismiss the bill for want of equity, and error in the Appellate Court to affirm the decree of dismissal.

The judgment of the Appellate Court and the decree of the circuit court are reversed, and the cause is remanded^to the circuit court for further proceedings in conformity with this opinion, and with leave to both parties to take such further testimony as they may deem advisable.

Judgment reversed.


author: Mr. Justice Magruder

text:
    Louis Wight et al. v. Michael Sampter et al.

      Filed at Ottawa January 25, 1889.

    1. Trust—whether a trust arises—one creditor receiving assignment of other securities, whether he takes as trustee for another creditor. A partnership firm being indebted to A in the sum of $25,000 and to B in the sum oí $15,000, and in failing circumstances, it was agreed by the parties that A-should advance to the debtor firm $15,000 and B $5000, which was done, and judgment notes were given by the debtors, to A for $40,000, and to B for his $15,000 and further advances, but the note to A was left with the debtor firm, who agreed to enter judgment thereon if necessary to protect A. Afterward B, by persuasion and threats, obtained possession of A’s note, and took steps for the entry of judgment on his own notes. To prevent this, A agreed to guarantee the payment of $10,000 of the debt of B, and that if judgment should be entered for the balance of B’s debt, it should have priority over any judgment in favor of A. New notes were given to B, $10,000 of which were guaranteed by A, and all the notes were left with an attorney under a letter of direction, signed by A and B, that no judgment should be taken on any of them without the order of A. The debtor firm afterward gave judgment notes to other persons, and notified A of that fact, and induced him to accejit notes and accounts, or run the risk of getting nothing. The guaranteed notes were paid, and part of the residue due to B, who obtained judgment for the balance, and by creditor’s bill sought to coerce payment of his judgment from A, on the ground that A held the notes and accounts assigned to him, as trustee: Held, that a decree holding A liable was erroneous, and that the bill should have been dismissed.
    2. Contract—strict construction, in equity. Where one of two creditors of a'failing firm, by unfair means, gains an advantage over the other, and thereby secures a contract giving him certain preferences, the party so obtaining the preferences will be entitled to no other than a strict construction of the contract, in a court of equity, and it will not be extended so as to prevent the other creditor from accepting other securities for his protection, voluntarily given by the debtor.
    3. Parol evidence—to vary written contract. A and B, two creditors of a firm, entered into an agreement that the former should guarantee to the latter a part of his debt, and thereupon the debtor gave new notes to them, as to a portion of which A gave a written guaranty of payment, and both the creditors left their notes with an attorney, with a letter of instructions, signed by them, describing the notes, and reciting therein, “we retain yon as our attorney in connection with the same. * * * We hereby jointly and severally instruct and direct you to take no action whatever on said notes, or any or either of them, and not to enter judgment thereon until instructed so to do by the said” A, or his agent: Held, that the notes, the guaranty, and the letter of instructions, constituted the written contract of the parties, A and B, and that parol evidence was not admissible to vary, alter, add to or contradict its terms, and, therefore, it was not competent for B to show an oral agreement of A to pay his claim out of any notes and accounts he might thereafter receive from the debtor firm.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Oliveb H. Hobton, Judge, presiding.
    This is a bill filed on December 28, 1885, in the Circuit Court of Cook County by the appellees, Michael Sampter, Otto Sampter, Arnold Sampter, Morris Sampter and Sigmund Simon, composing firm of M. Sampter Sons & Co. of New York City, against appellants Lewis Wight and J. Franklin Wight, members of the firm of Wight Brothers of Boston, Massachusetts, and Amalie Beak, Alfred Bucher, Mrs. Alfred Bucher, Joseph Tillman, Simon Minchrod, Seth F. Hanchett, - Hecht. The bill was finally dismissed as to the five defendants last named. Amalie Beak and Alfred Bucher prosecuted no appeal from the decree of the Circuit Court, which was in favor of the complainants below. This appeal is prosecuted by the Wights alone from the judgment of the Appellate Court, which affirmed the decree of the Circuit Court.
    Answers were filed by the Wight Brothers, by Amalie Beak and by Alfred Bucher and wife, to which general replications were filed.
    The bill, as originally filed and as subsequently amended, is, so far as the principal defendants, Beak and Bucher, are concerned, an ordinary creditor’s bill, praying for discovery of ..assets, injunction, receiver, etc. It alleges that complainants recovered a judgment by confession for $9943.00 on December 28, 1885, in the Superior Court of Cook Co., against Beak and Bucher, upon which there was due, when the bill was filed, the sum of $7716.40; that execution had been issued on the same and returned unsatisfied; that on December 26, 1885, judgments by confession were entered up in the same court against Beak & Bucher, one for $27,200.00 in favor of said TJ'llman, and one for $8400.00 in favor of said Minchrod; that, under executions, issued upo.n the last named judgments, the Sheriff of Cook County had levied upon, and then had in his hands, the stock in trade of Beak & Bucher, who were carrying on a wholesale fur and cloak business in Chicago; that such stock is insufficient to satisfy the executions so levied upon it; that Beak & Bucher had a large number of outstanding accounts against parties in Illinois and other States, some of which have been assigned to Wight Brothers and some remain unassigned; that, on August 10, 1885, complainants, being creditors of Beak & Bucher, to the amount of about $20,000.00 and being desirous of forcing the collection of their claim, made what is alleged to be “an agreement partly oral and partly evidenced by writing” with Wight Brothers, who were also creditors of Beak & Bucher to the amount of about $40,000.00, but were opposed to beginning legal proceedings against them, by the terms of which complainants agreed to abstain from legal proceedings, and, in consideration thereof, Wight Bros, agreed to and did guarantee $10,000.00 of the debt due to complainants from Beak & Bucher, and Wight Bros, are also alleged to have agreed “to take charge of” the balance of the claim of complainants represented by a judgment note, dated August 10,1885, for $9706.40, and “force it against said principal defendants whenever they, Wight Bros., would find it necessary to do so for the interests of” complainants ; that this arrangement was known to Beak & Bucher; that complainants thereafter looked to Wight Bros, to protect their interests; that the assignment of the said accounts to Wight Bros, on December 26, 1885, in liquidation of their own indebtedness against Beak & Bucher, was in fraud of the rights of complainants; that Wight Bros, intended thereby to collect their own claim and leave that of complainants uncollected; that complainants are “equitably entitled either to have a portion of said claims or all of them assigned to them;” that “Wight Bros, are trustees for orators in that behalf” and have no property in Illinois subject to execution; that the accounts so assigned are believed to be from $20,000.00 to $30,000.00; that the Ullman judgment was entered for more than was due; that the Minchrod judgment did not represent a bona fide indebtedness; that the Wight Bros, are interested in such judgments, and the amount of such interest should go to complainants, and to the extent thereof Ullman and Minchrod are trustees for complainants; that Beak & Bucher have no property except said stock and accounts; that Beak & Bucher owned a retail store and stock of goods therein at Milwaukee, Wisconsin, and have transferred said stock to one Hecht, their employe, and manager, in fraud of their creditors, etc. The prayer of the bill is that Hecht be enjoined from interfering -with the stock and that Wight Bros, be enjoined from removing the books of account out of the jurisdiction and from collecting or assigning the accounts.
    The answer of Wight Brothers admits that the judgment in favor of complainants was rendered, but charges that the debt represented by it had been paid and satisfied, and that an alias execution had been issued upon it, ’which was then in the sheriff’s hands subject to executions in favor of Henry Gr. Savage and Ullman and Minchrod; alleges, that the Minchrod judgment was entered for the benefit of complainants at the request of Beak & Bucher, and that the Sheriff has realized out of the property of Beak & Bucher and applied upon the execution issued upon the Minchrod judgment the sum of $3337.17, and that $3337.17 of said amount has been paid to and received by complainants; that, when complainants’ judgment was entered, the sheriff was in possession of the stock of Beak & Bucher under an execution in favor of Savage for $2857.60, being a first lien, and the executions in favor of Ullman and Minehrod, the latter being second liens and sharing pro rata as between the two; that, on December 28, 1885, complainants began an action on the case for $5000.00 damages against Wight Brothers in the Circuit Court, which action is still pending and involves the same matters involved in the present suit; further alleges, that, on December 26, 1885, Beak & Bucher sold and assigned all their book accounts and two notes owned by them to Wight Brothers in payment of $25,000.00 of an indebtedness of $32,422.70 then due to Wight Bros, from Beak & Bucher; that Wight Bros, have no security for the remaining $7422.70 of their indebtedness which is still due to them from Beak & Bucher; that the value of said accounts and notes is less than the $25,000 paid off by their assignment; admits that defendants signed the written directions, dated August 10, 1885, and hereinafter set forth, to the attorneys of complainants, and that they guaranteed $10,000.00 of complainants’ claim against Beak & Bucher, which -has since been paid; but the answer denies, that Wight Bros, made any agreement in relation to the balance of complainants’ claim, to-wit: the note for $9706.40, except as contained in the writing of August 10, 1885; denies that defendants agreed to take charge of the claim for $9706.40 or to force it against Beak & Bucher, or that they did so, but avers that said claim was put into the hands of complainants’ own attorneys, to whom also Wight Bros, entrusted their own notes under said written directions; alleges, that complainants and their attorneys collected $2000.00 of said $9706.40; denies that defendants have any interest in the Ullman and Minehrod judgments, or that the assignment of the accounts was in fraud of the rights of complainants, or that defendants have taken any action against Beak & Bucher upon their own notes mentioned in the writing of August 10, 1885, or that they knew of the Ullman and Minchrod notes until December 26,1885; denies that Wight Brothers are trustees for complainants or that complainants are entitled to any of said accounts. The answer of Wight Brothers further sets up the arrangement of March 10, 1885, and the circumstances connected with the execution of the writing of August 10, 1885, substantially as stated in the opinion.
    The answer of Alfred Bucher is the same as that of Wight Brothers; it further alleges, that Beak & Bucher, on December 26,1885, being embarrassed and unable to go on in business, and owing Savage $2700.00, Ullman $22,483.45, (then supposed to be $26,200.00), Wight Brothers $32,422.70, Sampter Sons & Co. $7716.40, assigned to Wight Brothers two notes of $2500.00 each, received from Hecht in payment for the Milwaukee stock, and all the book accounts, in return for a cancellation of $25,000.00 of indebtedness, and confessed judgments in favor of Savage, Ullman and Minchrod, the first to be a first lien on the stock and the last two to be a second lien sharing pro rata, and that the Minchrod judgment represented the debt due to complainants; that the -Milwaukee stock was fairly sold to Hecht for $10,000, which has been used in payment of debts; that $3737.17 has been realized on the Minchrod judgment and paid to complainants and accepted by them, etc.
    It was afterwards agreed that the attorneys of appellants should collect the accounts and notes so assigned, and it is admitted, that $19,000.00 have been collected.
    The Circuit Court, in its decree, found the allegations of the bill to be true, and that, after August 10,1885, Wight Brothers stood in a relation of trust towards complainants as to the claim of the latter against Beak & Bucher; that, on December 26,1885, Wight Brothers could have made the claim of complainants out of Beak & Bucher’s assets but failed to do so, that by collusion they received claims amounting'to the actual value of about $20,000.00 and used the same in payment of their own debt; that Wight Brothers on August 10,1885, had agreed to first pay complainants’ claim out of the claims that might he assigned to them; that Wight Brothers were hound to hold the notes and claims assigned to them in trust to first pay complainants and then to pay themselves; that $19,000.00 have been collected and $3337.17 paid; it is then decreed, that Wight Brothers and Beak and Bucher pay to complainants $4773.00, the balance due to them from Beak & Bucher, “which sum has come to the hands of said Wight Brothers from the assets of said Beak & Bucher; and which, in equity, they now hold in trust for the said complainants.”
    The following agreement in the form of a letter was executed by the subscribers on August 10, 1885:
    “Chicago, August 10th, 1885.

      “Messrs...............Attmneys at Law:

    “Gentlemen—We have this day deposited with you the following notes of Beak & Bucher, of Chicago, Illinois, and retain you as our attorneys in connection with same:
    “First—The note for $9706.40, dated Chicago, August 10th, 1885, payable to the order of M. Sampter Sons & Co., one day after date, with power of attorney to confess judgment thereto annexed.
    “Second—Note for forty thousand dollars, dated Chicago, March 14th, 1885, payable to the order of Wight Brothers, due one day after date, with warrant of attorney to confess judgment thereto annexed.
    “Third—Note for ten thousand dollars, dated Chicago, August 10th, 1885, payable to the order of Wight Brothers, one day after date, with warrant of attorney to confess judgment thereto annexed.
    “We hereby jointly and severally instruct and direct you to take no action whatever on said notes, or any or either of them, and not to enter judgment thereon until instructed so to do by the firm of Wight Brothers, or some member of said firm, or by the agent thereof. In case judgment is entered

      on said notes or any of the same, at any time hereafter, under said instructions or otherwise, you are directed and instructed to prefer said claim of M. Sampter Sons & Co. over said claim of said Wight Brothers, and to make said claim of said M. Sampter Sons & Co. a lien upon the property of said Beak & Bucher prior to said claim of Wight Brothers, or any members thereof.
    M. Sampter Sons & Co.,
    (Signed) Wight Brothers.”
    The following guarantee was executed on August 10,1885 :
    “For and in consideration of the sum of one dollar to us in hand paid, the receipt of which is hereby acknowledged, and in further consideration of the extension of the time of payment of ten thousand dollars of the amount of the indebtedness due at this time from Messrs. Beak & Bucher of Chicago, Illinois, to Messrs. M. Sampter Sons & Co. of New York, the evidences of which indebtedness are now surrendered and cancelled, which said extension is shown by five certain promisory notes hereinafter described, and in consideration of the benefit accruing to the firm of Wight Brothers of Boston, Massachusetts, as creditors of said Beak & Bucher, from such extension, that said firm of Wight Brothers, and J. Franklin Wight, a member thereof, do hereby jointly and severally guarantee the payment at maturity of each and all of the following promissory notes of Beak & Bucher, about to be executed by said Beak & Bucher and delivered to M. Sampter Sons & Co., concurrent with the execution of this guaranty and by reason of the same:
    “First—The note of B. & B. for two thousand dollars, dated Chicago, July 14th, 1885, payable three months after date.
    “Second—Note of B. & B. for two thousand dollars, dated Chicago, July 21st, 1885, payable three months after date.
    “Third—Note of B. & B. for two thousand dollars, dated August 7th, 1885, payable three months after date.

      “Fourth—Note of B. & B. for two thousand dollars, dated Chicago, August 13th, .1885, payable three months after date.
    “Fifth—Note of B. & B. for two thousand dollars, payable three months after date.
    “Failure to pay any one of said notes at maturity shall constitute a breach of this guaranty.
    “Witness our hands this 10th day of August, 1885.
    Weight Brothers,
    J. Franiclin Wight.”
    It furthermore appears from the evidence that in December, 1885, Beak & Bucher executed judgment notes to three of their creditors, Savage, Ullman, Minchrod, the latter for the benefit of M. Sampter Sons & Co.; that, on December 26, 1885, the attorneys of Beak & Bucher had the papers prepared, necessary to the entry of judgments on said notes, so as to give Savage the first lien on the stock and Ullman and Minchrod the second liens thereon, and, during the forenoon of that day, J. F. Wight was for the first time informed by Bucher and his attorneys of the existence of said notes, and was told that judgments were to be entered up in favor of Savage, Ullman and Minchrod in the afternoon, and that unless he accepted the accounts and Hecht notes in payment of $25,000.00 of his indebtedness he would get nothing, and that all the arrangements were perfected to enter such judgments before judgments could be entered on the notes mentioned in the letter of August 10, 1885, by the attorneys to whom the same was addressed; that thereupon the accounts were assigned to Wight Brothers, and they cancelled $25,-000.00 of their indebtedness against Beak & Bucher; that in the afternoon of December 26, 1885, judgments were entered in favor of Savage for $2857.60, Ullman for $27,200.00 and Minchrod for $8400.00; that the stock of Beak & Bucher was at once levied upon, and, from the proceeds of such levies, Savage has been paid in full, and the balance of the proceeds divided pro rata between Ullman and M. Sampter Sons & Co.; that the amount received by the latter from such proceeds is $3300.00 or thereabouts.
    So much of the balance of the testimony, as is necessary to understand the points involved, is set forth in the opinion.
    Messrs. Weigley, Bulkley & Gbay, for the appellants:
    For any misfeasance or non-feasance of an agent or trustee, resulting in damage to the principal or cestui que trust, a suit at law is the proper remedy. Doyle v. Murphy, 22 Ill. 502; Steele v. Clark, 77 id. 471; Hun v. Cary, 82 N. Y. 70.
    An action of assumpsit will lie against a trustee, at the suit of the cestui que trust, for money received or property disposed of by him, the same being the money or property of the cestui que trust. Catlin v. Birchard, 13 Mich. 110.
    A party having obtained a contract by fraud or unfair means, can have no relief from a court of equity, based on such contract. Fortier v. Darst, 31 Ill. 212; Cathcart v. Robinson, 5 Pet. 264; Tamm v. Lavalle, 92 Ill. 263; Thorp v. McCullum, 1 Gilm. 614; Taylor v. Merrill, 55 Ill. 52.
    The reason why equity will decree specific performance of a contract is, because damages at law may not, in the particular case, afford an adequate remedy. 2 Story’s Eq. Jur. secs. 717, 716, note 2; Duff v. Fisher, 15 Cal. 381.
    Equity will not decree specific performance of a contract respecting personalty. (Pierce v. Plumb, 74 Ill. 326.) Nor contracts for personal services. (Hamblin v. Dunneford, 2 Edw. 529; Stocher v. Brockelbank, 3 M. & G. 266.) Nor of a contract that is uncertain and indefinite. (Hassutt v. Yielding, 2 ceh. & Lefr. 554; Blanchard v. Railroad Co. 31 Mich. 44; Bowman v. Cunningham, 78 Ill. 48.) Nor one that lacks mutuality, or is unconscionable. Lear v. Choteau, 23 Ill. 39; Cathcart v. Robinson, 5 Pet. 264; Marble Co. v. Ripley, 10 Wall. 339; Railroad Co. v. Railroad Co. 57 Pa. St. 65.

      A trust is defined to" be an equitable right, title or interest in property, real or personal, distinct from the legal ownership. 2 Story’s Eq. Jur. see. 964.
    Three things are necessary to constitute a trust: First, sufficient words to raise it; second, a definite subject; and third, a certain or ascertained object. 2 Story’s Eq. Jur. sec. 964; Crewys v. Coleman, 9 Ves. 319.
    A court of equity will not assume jurisdiction on the ground of a trust, in cases where a mere confidence is reposed or a credit given. Doyle v. Murphy, 22 Ill. 502; Taylor v. Turner, 87 id. 296; Gibson v. Decius, 82 id. 304; Ashley v. Denton, 1 Litt. 87; Steele v. Clark, 77 Ill. 471; Douglass v. Martin, 103 id. 25.
    A trust will not be decreed on the ground of fiduciary relations existing between parties, when the purchaser pays his own money and takes title to himself, unless the person towards whom the fiduciary relation existed had some interest, or at least some claim or reasonable expectation of interest, in the property claimed to be affected with the trust. Rogers v. Simmons, 55 Ill. 76.
    No fiduciary relation was created between Sampter and Wight by reason of the contract entered into between them, and none was assumed by Wight. Hall v. Joiner, 1 Rich. 186.
    The rule in equity is, that persons standing in a fiduciary relation can not deal on their own account with the thing or the persons falling within that trust or relation. Dennis v. McGagg, 32 Ill. 429; Norris v. Taylor, 49 id. 17.
    It is a general rule of law that when parties have deliberately put their engagements in writing, in such terms as import a legal obligation, without any uncertainty as to the object or the extent of such engagement, it is conclusively presumed that the 'whole engagement of the parties and the extent and manner of their undertaking were reduced to writing. Emery v. Mohler, 69 Ill. 221; Weaver v. Fries, 85 id. 356; 2 Wharton on Evidence, sec. 1014.

      Parol evidence is inadmissible to vary, alter or change the terms of such contracts. Ibid., and Boorman v. Jenkins, 12 Wend. 574; Greenleaf on Evidence, sec. 275; Railroad Co. v. Brant, 17 Bradw. 151.
    Mr. E. A. Otis, for the appellees:
    To show that a trust existed in the appellants in favor of the appellees, in respect to the- notes and accounts, see Davis v. Hamlin, 108 Ill. 49; Kerr on Fraud and Mistake, (Bump’s ed.) 151, 179; Reed v. Peterson, 91 Ill. 295; Perry on Trusts, 166; Beach v. Dyer, 93 Ill. 295; Doyle v. Wiley, 15 id. 576; Trotter v. Smith, 59 id. 240.
   Mr. Justice Magruder

delivered the opinion of the Court:

On December 26,1885, appellants were bona fide creditors of Beak & Bucher to the amount of $32,422.70, and, on that day, cancelled and discharged $25,000.00 of such indebtedness by receiving from Beak & Bucher an assignment of notes and hook accounts, amounting upon their face to something over $27,000.00, but not shown to have been actually worth more than $25,000.00, and upon which it is conceded that only $19,000.00 had been collected when the decree in this cause was entered. On the same day, appellees were bona fide creditors of Beak & Bucher to the amount of $7716.40, which indebtedness had been reduced, at the date of the said decree, to $4773.00, the latter amount being the sum, which appellants are ordered by the decree to pay to appellees.

The question presented for our determination is this: Did the appellants hold the notes and accounts assigned to them, or the proceeds of their collection, in trust for appellees upon such terms that they were bound, first to apply the same to the payment of the $4773.00 due to appellees, and the balance to the payment of the $32,422.70 due to themselves, or were appellants entitled to keep and apply the whole of such notes and accounts, or the proceeds thereof, upon their own indebtedness without paying anything to appellees ? The theory of the bill, and upon which the decree is based, is, that appellants occupied a trust relation towards appellees, and, by reason thereof, could not appropriate to their own use any of the notes and accounts of Beak & Bucher that might come into their hands, until they had first paid the claim of appellees against Beak & Bucher. We think that this theory was an erroneous one under the facts disclosed by the record.

On December 26, 1885, Henry Gr. Savage and Joseph Ullman were also bona fide creditors of Beak & Bucher. As a part of the arrangement, by which the notes and accounts were used to pay the sum of $25,000.00 to appellants, Beak & Bucher also made provision, by confessing judgments and suffering executions to be issued thereon, for the distribution of the proceeds of the sales of their stock in trade between Savage, Ullman and appellees, Savage to be first paid in full, and Ullman and appellees to be next paid pro rata. The distribution so provided for was carried out, and appelleesaccepted $3300.00 as their share of the proceeds of the stock sales. That part of the arrangement made by Beak & Bucher which disposed of the stock, is not interfered with by the decree, and the attack upon it was abandoned by the dismissal of the hill as to the parties interested in it.

The claim of the trust relation is based upon an agreement made between appellants and appellees on August 10, 1885. Before discussing this agreement it will he necessary to review the circumstances, out of which it grew, and which led up to. its execution.

Early in March, 1885, Beak & Bucher telegraphed to appellants at Boston and to appellees at New York to come to-Chicago, as they were in a failing condition and could not continue their business without help. They then owed appellants $25,000.00 for goods purchased, and appellees $15,000.00 for money borrowed. The wife of Michael Sampter was a sister of Amalie Beak’s husband and an aunt of Bucher’s wife. At Chicago on March 9 or 10, 1885, it was agreed between Michael Sampter, J. .F. Wight and Bucher, that appellants should advance to Beak & Bucher $15,000.00, and that appellees should advance to them $5000.00, and that appellants and appellees “would carry Beak & Bucher along in good shape,” and, in doing so, would act in unison and in good faith towards each other, putting their interests together and neither taking any advantage of the other. The advances were made as agreed during the following spring. On March 9, 1885, appellees held the judgment notes of Beak & Bucher for the $15,000.00 loaned fo them, and obtained other judgment notes for the subsequent advances. On March 14, 1885, Wight Brothers received from Beak & Bucher a judgment note fo'r $40,000.00 to cover the existing indebtedness of $25,000.00, and the advances of $15,000.00 afterwards made, but confiding in the integrity of Bucher, they left the $40,000.00 note in his possession with the understanding that he should have judgment entered upon it, in case financial disaster should suddenly come upon his firm.

Michael Sampter swears that it was agreed between Wight and himself in March, 1885, that the appellees should be preferred, and that their indebtedness should be paid first in case the advances of $20,000.00 should be insufficient to prevent the failure of Beak & Bucher. Wight and Bucher deny this. They both swear that nothing was said at the March interview about preferring the Sámpters in the event of a suspension. We think the weight of the evidence is against the existence of any agreement at that time for the preference of appellees.

During the spring of 1885, Arnold Sampter became informed of the fact, that Wight Brothers had left their judgment note for $40,000.00 in the hands of Beak & Bucher.

On August 10, 1885, Arnold Sampter was in Chicago. In the forenoon of that day he placed the judgment notes of appellees in the hands of his attorneys with directions to prepare the papers for the entry of judgment on that day. He went to Bucher and secured possession of the note for $40,000.00 belonging to appellants. He only obtained it by much persuasion and after repeated declinations on the part of Bucher. He says himself in his testimony: “I asked for it and insisted upon having it. I bulldozed him out of it; * *' * I thought I kind of had Mr. Wight when I had possession of that note.” In the afternoon of the same day he again went to Beak & Bucher and threatened to take judgment and close them out. He refused securities they offered him to prevent his doing so. He then went in company with Bucher to the Palmer House to see J. F. Wight, who was stopping there. Wight says: “Mr. Sampter informed me that he had instructions from his father (Michael) to enter up judgment notes immediately against Beak & Bucher, that the papers were all prepared to do it in ease it was necessary, and also that he had my judgment note.”

The 'evidence shows that Wight Brothers would have lost nearly all of their large claim of $40,000.00, if the stock of Beak & Bucher had been levied upon at that time. J. F. Wight was undoubtedly taken at a disadvantage. The papers were ready for the entry of judgment upon the Sampter notes. His own judgment note for $40,000.00 was beyond his control, in the hands of Sampter or Sampter’s attorneys. Under these circumstances Wight agreed that he would guarantee the payment of $10,000.00 of the indebtedness due from Beak & Bucher to the Samplers, and that, if judgment should be entered up in favor of the Samplers for the balance of such indebtedness, it should have priority over any judgment to he entered by Wight Brothers on their note. In consideration of this agreement, Arnold Sampter consented to refrain from taking the action, which he had threatened, and he and J. F. Wight and Bucher went on the evening of the same day to the office of Sampter’s attorneys to have the agreement reduced to writing.

On that evening the old judgment notes given by Beak & Bucher to appellees were cancelled and left with the attorneys. Five new notes of $2000.00 each, dated on different days in July and August 1885, and payable to the order of appellees in three months after date, were executed by Beak & Bucher and turned over to Sampter. The payment of these five notes was guaranteed by a separate written contract of guaranty dated August 10,1885, and signed by Wight Brothers and by J. Franklin Wight. A judgment note of same date, payable to the order of appellees, for $9706.40, being the balance due the Samplers over and above the guaranteed notes, was executed by Beak & Bucher. A judgment note for $10,000.00 was also made by them to appellants to secure them in case they should be obliged to pay the five guaranteed notes. The judgment note for $40,000.00, which had not left the hands of Arnold Sampter since he obtained it from Bucher, the judgment note for $9706.40, and that for $10,000.00, were put into the possession of the attorneys, and a letter of instructions was drawn up addressed to said attorneys, dated August 10, 1885, and signed by “M. Sampter Sons & Company” and “Wight Brothers.” This letter describes the three notes last named, recites that they are deposited with the attorneys, and contains the following language: “We * * * retain you as our attorneys in connection with the same. * * * We hereby jointly and severally instruct and direct you to take no action whatever on said notes, or any or either of them, and not to enter judgment thereon until instructed so to do by the said firm of Wight Brothers, or some member of said firm, or by the agent thereof,” etc.

The notes, the guarantee and the letter of directions constitute the contract of August IQ, 1885, as reduced to writing. The trust relation contended for is alleged to spring from this contract. In view of the manner, in which its execution by Wight Brothers was brought about, it is entitled to no other than a strict construction from a court of equity.

The letter of directions to the attorneys was signed by appellants and appellees, not by Beak & Bucher. It placed no restrictions upon the latter as to the mode, in which they should dispose of their assets, or provide for their creditors. It said nothing upon its face about the assignment of accounts or notes. If it imposed any obligation upon appellants to pay the claim of appellees out of such notes and accounts as Bea'k & Bucher might choose to turn over to them, such obligation was not expressly enjoined, but is mere matter of inference. Is it a fair and legitimate inference from the language of the letter, that appellants would receive no notes or accounts from their debtors except for the benefit of appellees ?

The letter directs the attorneys not to enter judgment either upon the note of $9706.40 belonging to appellees, or upon the note of $40,000.00 belonging to appellants, until they are instructed to do so by Wight Brothers. The only power conferred upon Wight Brothers by the letter is simply the power to instruct the attorneys when to enter judgment. As to what was to be done after the entry of judgment, in the way of preferring the claim of appellees over that of appellants and making it a prior lien upon the property of Beak & Bucher, these were matters to be looked after by the attorneys, and were not within the control of Wight Brothers.

It is a fact that appellants never did give any instructions to have judgment entered either upon their own note or upon that of appellees, but we see nothing in the evidence to show that they were, for that reason, guilty of any intentional wrong towards appellees. Beak & Bucher and their counselors, without the knowledge or aid of appellants, made preparation for confessing judgments in favor of Savage, Ullman, and Minehrod, the latter for the use of appellees, and then sent for Wight and forced him to take the notes and accounts or run the risk of getting nothing. Did appellants receive such notes and accounts affected with a trust in favor of appellees, because, without fault on their part, no instructions had been given to enter up judgments upon the notes mentioned in the letter of August 10, 1885? There was nothing in that letter, which prohibited Beak & Bucher from making a payment to Wight Brothers on December 26, 1885. They owed appellants a debt, and they had a right to pay that debt, in whole or in part, either with money, or with notes and accounts. Did not appellants have a corresponding right to accept such payment when offered?

As matter of fact, Beak & Bucher paid, to appellees $12,-000.00, and to appellants about $7000.00, between August 10 and December 26,1885. Appellees knew that Beak & Bucher were making payments of money to appellants from time to time in the summer and fall of 1885 and made no objection to such payments.

The evidence and the arguments of counsel show clearly, that the provision, which forbade the attorneys from entering judgment until instructed to do so by appellants, was inserted in the letter for the benefit of appellants. By guaranteeing $10,000.00 of the claim of appellees, appellants virtually increased their own claim against Beak & Bucher from $40,000.00 to $50,000.00. At the conference on the evening of August 10, J. F. Wight stated that the Sampters would have it in their power to enter up judgment on their note for $9706.40 and levy on the stock, and then hold appellants liable upon their guarantee for the.remaining $10,000.00 of the Sampter claim. It was to avoid the possibility of such a result as this, that Wight Brothers were given the privilege of saying when judgment should be entered.

The fact that the attorneys were to prefer the claim of appellees by making the judgment “a lien upon the property of Beak & Bucher” shows, that the stock alone, and not the notes and accounts, were in the contemplation of the parties when the letter was signed. The judgment could not be made a lien upon the accounts.

The only notes received by Wight Brothers were two notes of $2500.00 each given to Beak & Bucher by one Hecht for the purchase of the Milwaukee store. In regard to this store Arnold Sampter says in his testimony: “I believe that was ■ to be transferred over to Mr. Wight, as we did not want to have anything in that line of business on our hands and he was in the business.” If Wight Brothers were to have the store, it could make no difference that they received, in stead thereof, a part of the proceeds of the sale of the store.

Realizing the difficulty of so interpreting the written contract as to make the notes and accounts trust property thereunder, the appellees attempted to prove, that, on August 10, 1885, appellants made an oral agreement to pay the claim of the Samplers out of whatever accounts they might thereafter receive. If it were allowable to introduce testimony for such a purpose, it can not be said that the evidence, which was permitted to come in, establishes the existence of any such oral agreement as is contended for.

Bucher swears that no other agreement was made than that which was reduced to writing. J. F. Wight swears to the same thing, and furthermore says: “The subject of accounts was not brought up before us that night at all. * * * The question of the accounts being assigned for the benefit of M. Sampter Sons & Co. never came up—never was mentioned between us in all our conversations from beginning to end.” Arnold Sampter, when asked what was said about the assignment of the accounts, answers: “I can not exactly recollect how that was to be done. In ease any attachment was put upon the stock, .our claim was to come first.” A clerk of the attorneys who drew the letter was present on the night of August 10, and says : “I do not think I have stated that there was an agreement with reference to the book accounts. * * * It was contemplated at that time that the stock was all that was necessary to secure these claims.” One of the three attorneys, to whom the letter was addressed, says: “I do not recollect that any distinct proposition was made that the accounts should be assigned to Wight. It was not understood or spoken of that they should be assigned to Sampter. * * * I did not personally contemplate having anything to do with the accounts at the time that document was prepared.” There are only two other witnesses who testify upon this subject. Their evidence tends to support the theory of appellees, but we think it is overborne by the weight of the opposing testimony. One of these witnesses was not present at any of the interviews on August 10, but speaks of remarks made long after that date.

The evidence<also fails to show any oral agreement by Wight to assume the collection of the claim of appellees. The attorney last referred to says: “Neither Wight nor any one told me that he agreed to collect Sampler’s claim.”

But we are of the opinion that the testimony to show the oral agreement was not competent, under the rule that parol evidence is inadmissible to vary, alter, add to or contradict the terms of a written contract. The parties here undertook to put their engagement in writing, and it will be presumed that the writing expresses their whole engagement and the extent and manner of their undertaking. It has not been intended by any of the expressions or language made use of in this discussion to pass any opinion upon the validity or invalidity of the general method adopted by Beak & Bucher for providing for their creditors. This decision concerns only the relations between appellants and appellees.

The decree of the Circuit Court and the judgment of the Appellate Court are reversed, and the cause is remanded to the Circuit Court with directions to dismiss the bill.

Judgment reversed.

Mr. Justice Bailey, having heard this cause in the Appellate Court, took no part in its decision here.