author: JUDGE SCHWARTZ

text:
    People of State of Illinois ex rel. George A. Trapp et al., Appellees, v. Joseph H. Tanner, President of Board of Trustees of Village of Evergreen Park, Louis Bruinius et al., Trustees of Village of Evergreen Park, Edwin W. Sack, Treasurer of Village of Evergreen Park, Alan L. Strand et al., Members of Board of Fire and Police Commissioners of Evergreen Park, Louis Riddering, and Village of Evergreen Park, Appellants.
    Gen. No. 46,740.
    First District, Second Division.
    April 3, 1956.
    Released for publication June 11, 1956.

      Louis F. Cainkar, McKinley & Price, and Peter Ti Appel, all of Chicago, for appellants.
    Michael F. Ryan, of Chicago, for appellees; Richard F. McPartlin, Jr., of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

This is an appeal from an order directing the issuance of a writ of mandamus requiring the defendants to reinstate relators to their positions as police officers of the village of Evergreen Park and entering judgment in favor of the relators for back salary in the sum of $3,472.53 each.

The three relators had held their positions for more than one year prior to March 17, 1954, the date on which a census was taken which subsequently showed that the village, having more than 13,000 inhabitants, was required to comply with the provisions of the Cities and Villages Act relating to civil service for police and firemen. The employment of the relators was discontinued by the village on May 17, 1954. The issues presented to us are — were the relators protected in their tenure of employment as of March 17,1954, and if so, are they entitled to back salary for the period of their ouster from office?

Under the Cities and Villages Act (Ill. Rev. Stat. 1955, Ch. 24, Article 14 — 1) a municipality which attains a population of 13,000 is required to put the act into effect and the mayor or president of the village board with the consent of the village trustees is re-required to appoint a board of fire and police commissioners. These commissioners are charged with the duty of enforcing the civil service requirements with respect to employment, hearing and discharge. Article 14-11 of the same act, called the blanketing provision, provides that no member of the fire or police department who has held that position for more than one year prior to the date the article becomes effective in the municipality shall be removed or discharged except for cause upon written charges and after an opportunity to be heard in his own defense.

At the request of the village a special federal census was taken March 17,1954. The results showed a population of 15,746. These results were not published, however, until June 16, 1954, This, defendants contend, was the earliest day on which the act became effective in the village, and the tenure of any existing employment was not fixed until that date. Hence, say the defendants, employment having been discontinued May 17, 1954, the relators were not employed for more than one year prior to June 16, 1954 and were not covered by the act. On the other hand, relators contend that the application of the law is automatic; that is, it is mandatory upon any village which reaches a population of 13,000 to put the act in question into effect, and the census having established that on March 17,1954 there were more than 13,000, people in the village, the act was effective as of that date. While the law is automatic in that sense, there still remains the perplexing question as to when the officials of a village should be presumed to know that its population has reached the required point and when the blanketing provision becomes effective with reference to that knowledge. That is not simple even in a relatively small village with a rapidly increasing population, such as the one here involved.

For the purpose of solving the problems we have outlined, the legislature has enacted a law relating to census (Article 1-9 of the Cities and Villages Act, Ch. 24, Ill. Rev. Stat. 1955 [§ 1 — 9]), as follows:

“Whenever in this Act any provision thereof is upon the number of inhabitants, the number of inhabitants of the municipality shall be determined by reference to the latest census taken by authority of the United States or of this State, or of that municipality. It is the duty of the Secretary of State, upon the publication of any State or United States census, to certify to each municipality the number of inhabitants, as shown by that census. And the several courts in this state shall take judicial notice of the population of any municipality, as the population appears from the latest Federal, State or municipal census so taken.”

Defendants argue from this that the result of the census could, not be officially known to them until the Census Bureau had published its figures and issued its bulletin in June, 1954. They rely on two Illinois cases— People ex rel. Nicholson v. Board of Trustees of Police Pension Fund of Village of Hinsdale, 281 Ill. App. 394, 404, and Board of Trustees of Police Pension Fund of Glen Ellyn v. Village of Glen Ellyn, 337 Ill. App. 183.

In the Hinsdale case the relatrix sought to establish her right to a pension pursuant to a statute relating to villages having a population of not less than 5,000. To do so she was required to prove that the village had more than 5,000 inhabitants on January 5, 1926. She produced experts who use the federal decennial censuses of 1910,1920 and 1930 and other data and who estimated the average annual increase therefrom. They arrived at the conclusion that the population was more than 5,000 in 1926. The court held that this was not a proper method for determining population, saying that if a “statute does not prescribe by what method the population is to be determined, an official census is the only basis for the classification.” The court concluded that the provision before quoted with respect to census (Article 1-9 Cities and Villages Act) should he construed together with the statute and that “ ‘the population to be determined by the United States Government statistics’ means ‘determined by reference to the latest census taken by authority of the United States.’ (Town of Maysville v. Smith, 132 Ga. 316, 64 S. E. 131).” The court said it had found no case in which the exercise of governmental powers was dependent upon population where it was not held that the population was to be determined by an official census. Nor have we been able to find such a case. However, that principle is not applicable here because in the instant case we have a census establishing the population as of March 17, 1954, and the question is whether that date or the date of publication controls.

In the Glen Ellyn case, the village appealed from an order allowing the board of trustees of the police pension fund to recover judgments for money which the defendant had allegedly diverted from the fund for the years 1932 to 1945. The question presented was whether the village had a population of 5,000 in 1930. The evidence showed that a bulletin had been issued by the Bureau of Census December 24, 1930, in which the population of the village was fixed at 7,680. The defendant urged that this publication was of no legal significance on the ground that the Secretary of State had issued no certificate of population in 1930 as required by law and that such a certificate was a condition precedent to the operating effect of the act. The court held against the defendant, saying there was nothing which established that act as a condition precedent to the effectiveness of the civil service statute. The court held that the village officials were under obligation to accept the federal decennial census as shown by its official publication to be 7,680. The court stated that when the official census publication was received the village officials were required “to establish a fund and provide for a board of trustees at the earliest possible date.” Defendants in the instant case take comfort from that language as supporting their right to discharge the relators on May 17, 1954. We do not so view it. The establishment of a pension fund required the setting up of new administrative machinery and the performance of new duties. The case did not involve, as here, the preservation of existing relationships to conform to the purpose and spirit of the act.

The two Appellate Court cases just discussed appear to be the only authorities in Illinois on this question. However, there is a substantial amount of authority to be found in other jurisdictions. The cases divide themselves into two categories. Some hold that it is the date of enumeration which controls and that the census when published relates back to that date. Underwood v. Hickman, 162 Tenn. 689, 39 S.W.2d 1034 (1931); City of Twin Falls ex rel. Cannon v. Koehler, 63 Idaho 562,123 P.2d 715 (1942); State ex rel. Jordan v. Dehart, 15 Wash. 551, 131 P.2d 156 (1941); and City of Detroit v. Kims, Com’r of Revenue, 330 Mich. 239, 47 K.W.2d 4 (1951). Some hold that the census is not valid until official publication. Varble v. Whitecotton, 354 Mo. 570, 190 S.W.2d 244 (1945); Lewis v. Lackawanna County, 200 Pa. 590, 50 A. 162 (1901); Wolfe v. City of Moorhead, 98 Minn. 113, 107 K. W. 728 (1906); Childers v. Duvall, 69 Ark. 336, 63 S. W. 802 (1901). The requirement of official publication has in some courts been fulfilled by the publication of a preliminary bulletin such as appears to be commonly issued by the Federal Census Bureau, while others have held that the census is not effective until the final legal act of ascertainment and promulgation. For our purposes this last distinction is not relevant.

Of the cases in the first group (those which have taken the date of enumeration) City of Detroit v. Nuns, Com’r of Revenue, supra, is the most enlightening and in many respects the most relevant. In that case the Michigan law provided for the apportionment of certain sales tax revenue among the counties on a per capita basis, the computation to be based on the latest state-wide federal census or any special federal countywide census, whichever was later. The funds involved were those collected during the year 1950. The federal census of 1950 was taken as of April 1, 1950. A preliminary census bulletin was issued on August 1, 1950. Before that date the tax authorities distributed the tax on the basis of the 1940 federal census. After August 1, 1950, distribution was made on the basis of the preliminary 1950 census bulletin, and adjustments were made to compensate for overpayments and underpayments, based on the application of the 1950 census as of April 1, 1950. Thus, the question squarely presented to the court was whether or not April 1, 1950, the date the enumeration was taken, was the effective date for the application of the law. The court analyzed the various cases, most of which we have cited, and found them equally divided. The court said that where the jurisdiction of a court, the method of drawing juries, or the appointment or election of public officials is in issue courts have required absolute certainty and therefore have been inclined to hold that the population has not been established until the final legal act of ascertainment and publication. Where, however, such absolute certainty with respect to the issue involved is not demanded, a more fair and liberal interpretation of the statute may be applied. In the case before them they held that the date of enumeration was controlling and that the Commissioner of Revenue had made a proper distribution when he based it upon the enumeration date, April 1,1950, and made adjustments accordingly. The court explicitly stated that in arriving at this conclusion it was not undertaking to settle upon some definition which would be appropriate and controlling in all cases in which a census was involved. They said: “We emphatically do not decide in this case the meaning of terms employed in statutes not involved in this case.” The inquiry must be, they said, what the people meant by the adoption of the statute involved, looking to the purposes and objects of that law, as well as the letter thereof.

Civil service was adopted to improve public service and particularly to eliminate political and religious prejudice and other bias in the selection of employees and to protect them against dismissal on grounds not related to the quality of their service. In order to avoid the confusion of a complete turn-over upon the adoption of civil service, it was provided that those who had been in office for one year prior to the time the act became effective should be protected by law in their tenure of employment. When on May 17, 1954 the relators were discharged, defendants knew that the village had a population of more than 13,000 and knew that a preliminary bulletin to be issued shortly thereafter would reveal the true population. They knew this because in April 1954 they had requested and received additional revenue for the village from the State Motor Fuel Tax Fund on the basis of a population in excess of 15,000 (Ill. Rev. Stat. 1953, Ch. 120, Sec. 424). At the same time the village assumed it was not bound to comply with the Civil Service Act until publication of an official announcement by the Census Bureau.

Article 14-17, Cities and Villages Act (Ill. Rev. Stat. 1955, Ch. 24 [§ 14 — 17] ) is enlightening with respect to the legislature’s intention in the application of a blanketing provision such as the one in question. In it provision is made for the adoption of civil service in municipalities of less than 13,000. In such municipalities civil service may be adopted by a referendum, and it is explicitly provided that in such case the blanketing provision should apply within one year prior to the adoption of the act. The blanketing provision was not made to abide the establishment of a board of fire and police commissioners or other administrative machinery. Could village authorities, in the few days between the holding of a referendum on the adoption of civil service and publication of the results, dismiss employees who had held office for more than one year 1 The answer is obvious. We think the analogy is applicable to the instant case. It is our opinion that a fair interpretation of the act in question, read together with the provision of the act relating to census, is that the blanketing provision of Article 14-11 was in effect as of the date the enumeration was taken.

We now proceed to a consideration of the other issue. On March 31, 1955, the court orally announced its decision, which was adverse to defendants, but no order was entered. On April 6, it was stipulated by counsel that if any judgment were entered, it should not be mandamus, but a money judgment against the village. Thereupon counsel for the relators for the first time asked leave to make the village a party defendant, which was allowed. The village then filed an answer which adopted the pleadings of the other defendants and set up two additional defenses: first, that the duties of the relators had been performed by de facto officers and that moneys appropriated therefor by the village had been used to pay such de facto officers; and, secondly, that the relators had been employed elsewhere during the period of their ouster and had not been damaged by reason of nonpayment of salaries. The court refused to permit defendants to introduce evidence to sustain the allegations made in their answer. They thereupon made an offer of proof, to which the court sustained an objection. Plaintiffs contend that the court exercised proper discretion in denying the village the right to present evidence at that stage of the proceedings. This is a case in which a municipality is involved, and with respect to municipalities courts do and should exercise a broader and more lenient discretion. Moreover, this was the first opportunity the village had to present its case, except insofar as it may be said to have been represented by the individual defendants. However, the judgment sought and rendered was against the village. It is questionable whether the court had any discretion with respect to the filing of the answer and the presentation of additional defenses immediately after the village was made a party. It could have rendered its judgment only on the conclusion that the defenses were legally insufficient, and that, from our reading of the record, is what was done. We must therefore consider whether these defenses are sound in law.

In this court the village has relied only on the defense of payment to a de facto officer. The general rule is well-established in this state that payment to a de facto employee is a good defense to a suit for back salary by an ousted de jure employee. McKinley v. City of Chicago, 369 Ill. 268, 16 N.E.2d 727; Ryan v. City of Chicago, 369 Ill. 59, 15 N.E.2d 708; Hittell v. City of Chicago, 327 Ill. 443, 158 N. E. 683; People ex rel. Sartison v. Schmidt, 281 Ill. 211, 117 N. E. 1037; Bullis v. City of Chicago, 235 Ill. 472, 85 N. E. 614. The reason for the rule as stated in these cases is that public service requires a performance of these duties in the interest of the community, and to require public authorities to withhold the pay of a de facto incumbent at the peril of having to pay the same a second time would tend to impair efficiency. However, this rule has been modified. If a municipality persists in barring an ousted employee from his position after a judicial determination in Ms favor, it is liable for Ms salary from the date of that adjudication and cannot defend on the ground that it has paid a de facto employee to perform the services during the period of ouster. Corbett v. City of Chicago, 391 Ill. 96, 62 N.E.2d 693.

The plaintiffs in the Corbett case after a hearing had February-24, 1941 obtained a writ of mandamus compelling their certification and appointment to positions as telephone operators (police clerks) in the classified civil service of the City of Chicago. An appeal was taken from tMs order and the judgment was affirmed in People ex rel. Corbett v. Allman, 312 Ill. App. 484, 38 N.E.2d 810. The Supreme Court on June 10, 1942, denied a petition for leave to appeal. On July 1,1942 the appellees were employed by the City of Chicago pursuant to the original judgment in the mandamus proceeding. They then brought suit to recover their salaries from the city from February 24, 1941, the date of the original judgment in the mandamus proceeding, to July 1, 1942. From a judgment in their favor the defendant, City of Chicago, appealed. The court distinguished the McKinley case, supra, in that McKinley sought to recover salary for a period between the time of his election and the date he assumed office, while the plaintiffs in the Corbett case sought to recover only from the date on which the judgment in mandamus was first rendered, and their salaries were allowed only from the time of that judicial determination. The court in the Corbett case said that, as distinguished from the McKinley case, there had been a judicial determination by a court of competent jurisdiction after a full and complete hearing on the question, and “. . . the only uncertainty present was that in the minds of the city officials that the circuit court’s judgment was wrong.” The city contended that by this holding it was deprived of its right to appeal the judgment of the lower court. The court, however, said that upholding the contention of the city “would be to permit administrative officials of a city to set aside at will for a considerable period, dependent upon the time consumed in an appeal, the determination of a court of competent jurisdiction.” The case does not explicitly make good faith an element necessary to the application of the rule. The good faith appears, as we understand the Corbett case, to have been limited to the prosecution of an appeal. The legal question relating to the right of the village to discontinue the relators’ employment was a matter of first impression in this state. While we find that the village was wrong, bad faith is not to be presumed from that finding. The court should permit the village to submit evidence of payment to de facto incumbents up to the time of the order for a writ of mandamus.

The order awarding the writ of mandamus is affirmed. The judgments entered for back salaries are reversed and the cause is remanded for further proceedings not inconsistent with the views herein set forth.

Order awarding writ of mandamus affirmed.

Judgments reversed and cause remanded.

McCORMICK, P. J. and ROBSON, J., concur.


source: Caselaw Access Project

author: JUDGE FETNBEBG

license: Public Domain

text:
    Sophie L. Fischer, Appellant, v. Slayton & Company, Inc., a Missouri Corporation, and Hovey E. Slayton, Appellees.
    Gen. No. 46,683.
    First District, Third Division.
    May 2, 1956.
    Rehearing denied May 24, 1956.
    Released for publication June 14, 1956.

      Theodore H. Schlake, of Chicago, for appellant.
    Lewis, Overbeck & Furman, of Chicago, for defendant-appellee, and cross-appellant; Donald P. Vail, of Chicago, of counsel.
   JUDGE FETNBEBG

delivered the opinion of the court.

Plaintiff’s complaint is for accounting against defendant, arising out of certain stock transactions between plaintiff and defendant, as a broker. The action as to Hovey E. Slayton was dismissed. The cause was referred to a master, who heard the evidence, reported his findings of fact and conclusions of law, and recommended that the complaint be dismissed for want of equity. Upon a hearing of plaintiff’s exceptions to the master’s report, a decree was entered overruling the exceptions and dismissing the complaint for want of equity. The appeal is from this decree.

The pertinent facts out of which the controversy arose are: that plaintiff, during the year 1940, commenced dealings in securities with William A. Schuberth, then a licensed security salesman for Joseph Dixon & Company, a brokerage firm dealing in the stocks and securities; that he acted as her agent and representative from 1940 until August 1943, when Schuberth’s employment with Dixon terminated (for what reason is not disclosed). He entered the employment of defendant company in September 1943, and brought with him to the defendant the account and securities he handled for plaintiff.

It appears that in the account of plaintiff taken by Schuberth to defendant were so-called “Group Securities.” These securities were sold by defendant, and the proceeds, amounting to $5295, were invested in “Managed Funds, Inc.” In addition to the sum realized from the sale of the “Group Securities,” defendant also received from plaintiff further sums aggregating $2327.55, making a total of $7622.55. There must be added to this amount $1245.89, interest paid to defendant on loans made, or an admitted total outlay by her of $8868.44. From time to time during her dealings with defendant through Schuberth, securities were purchased for plaintiff’s account, and loans were made against them, and with such loans additional securities were purchased for plaintiff’s account.

It further appears, and the master so found, that “Managed Funds, Inc.” is a corporation which was organized in 1946 by defendant and owned and managed by the defendant company. Thus, when plaintiff’s “Group Securities,” which had been paying dividends, were converted by defendant into “Managed Funds, Inc.,” it was a conversion into securities owned, controlled, managed and dealt in by defendant in “Managed Funds, Inc.”

It also appears that each time defendant purchased securities in “Managed Funds, Inc.” for plaintiff, they charged her 9% commission. The master also found that plaintiff has suffered some substantial losses in her investments in “Managed Funds, Inc.” The details of these losses appear in the master’s finding No. 17.

It appears that “Managed Funds, Inc.” had no record of performance or payment of dividends at the time they converted plaintiff’s “Group Securities” into “Managed Funds, Inc.” The master also made the following finding:

“There can be no doubt that the plaintiff had a great degree of trust and confidence in Schuberth; not only did she make no records of the monies which she put into his hands (despite the fact that her job-as a bookkeeper should have made her cognizant of the value of records) but, according to her testimony, she took Schuberth’s word as to what to sign, what to buy, what to sell and what to do with her financial matters. Schuberth was even entrusted with the task of making out the plaintiff’s income tax returns (Defendant’s Exhibit T9’) which were forwarded to the proper government officials without the plaintiff’s having any accurate knowledge of their content. In her testimony, the plaintiff revealed that she did not have a basic understanding of financial matters and it is entirely credible that she would have sought the aid of such a person as Schuberth, in whom she could repose her confidence and who had the experience and knowledge to render her professional services in order to guide her financial affairs.”

These findings of the master, having been approved by the court and not excepted to by defendant, are controlling against defendant. We think there is ample support in the record for these findings.

When Schuberth brought plaintiff’s account to defendant, together with the securities in her account, against which some loans were outstanding, it was incumbent upon defendant to ascertain what the relationship was between Schuberth and the plaintiff, and the nature of his transactions with her. Having taken over her account and allowed Schuberth to continue to act for her as he did when he was connected with Dixon, defendant was responsible for leading plaintiff to believe that her trust and confidence in Schuberth, and the fiduciary relationship existing, continued in her dealings with defendant through Schuberth. Zegarski v. Ashland Savings & Loan Ass’n, 4 Ill.App.2d 118, 122.

Defendant upon this appeal admits: “These transactions, until his resignation in June, 1948, were handled for her by Schuberth on behalf of Slayton & Company. He had gained her complete confidence while with Dixon & Co., and continued to enjoy that confidence until a short time before his death.” Schuberth died April 30,1949, prior to the commencement of this action. His testimony was not available, and conversations between plaintiff and Schuberth, while he was connected with defendant, were not competent.

We think the record justifies the conclusion that defendant cloaked Schuberth with sufficient apparent scope of authority to continue the fiduciary relationship between him and plaintiff.

In Hartford Life Ins. Co. v. Sherman, 123 Ill. App. 202, affirmed 223 Ill. 329, it was said:

“. . . A person dealing in good faith with an agent who is apparently acting within the scope of his authority is not responsible for any breach of trust the agent may perpetrate upon his principal. Where one of two innocent contracting parties must suffer from the . . . unauthorized act of an agent, the loss should fall on him who selected the agent and whom the agent represents. One dealing with an agent is not bound to be on the watch lest the agent wrong his principal. Where the acts of the agent will bind the principal, his representations respecting the subject-matter, made while he is transacting the business and executing his authority, will also bind the principal, even though such representations are fraudulent.”

In Northern Illinois Coal Corp. v. Cryder, 361 Ill. 274, 287, it was held:

“. . . the principal is bound to the same extent by the authority assumed and exercised, with the apparent authority of the principal, as by the authority actually granted.”

While the fiduciary relationship existed defendant had no right to engage in self-dealing by the conversion of plaintiff’s “Group Securities” into “Managed Funds,” by the subsequent purchases for plaintiff in “Managed Funds,” and charging her a commission of 9% upon each purchase.

What we said in Holyoke v. Continental Illinois Nat. Bank & Trust Co., 346 Ill. App. 284, 295, and cases there cited concerning self-dealing by a fiduciary, is applicable here:

“This court ... in Continental Illinois Nat. Bank & Trust Co. v. Kelley, 333 Ill. App. 119, said:

“ ‘It is a salutary rule, long recognized, that a trustee may not engage in self-dealing in the performance of its duties as trustee, which results in loss to the trust. To relax this rule would be dangerous to the trust in too many other instances — instances where the trustee may not be in a position to make good the loss. The question of negligence or good faith does not enter into it. As was said by the Supreme Court in Miles v. Wheeler, 43 Ill. 123, at p. 126:

“ ‘ “It avails nothing to show that the intentions of the trustee were honest, and that there was no fraud in fact. It is one of those cases in which the law will not permit a trustee to palter with his own conscience. It shields him from all temptation by the inflexible rule that he cannot buy. The plain and sufficient reason is that the interests of the buyer and seller of the same property are necessarily antagonistic, and the only safe rule is one which absolutely forbids a trustee to occupy two positions inconsistent with each other.” ’ Citing Joliet Trust & Savings Bank v. Ingalls, 276 Ill. App. 445, 450; Magruder v. Drury, 235 U. S. 106.

“In Nonnast v. Northern Trust Co., 374 Ill. 248, 261, the court adopted with approval the frequently quoted language of Justice Cardozo in Meinhard v. Salmon, 249 N. Y. 458:

“ ‘Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the “disintegrating erosion” of particular exceptions. (Wendt v. Fischer, 243 N. Y. 439, 444.) Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.’ ”

Such fiduciary relation is not limited to cases of trustee and cestui que trust, guardian and ward, attorney and client, or other recognized legal relations, but it exists in all cases where .confidence is reposed on the one side and a resulting superiority and influence on the other side arises therefrom. The origin of the confidence is immaterial. Schweickhardt v. Chessen, 329 Ill. 637, 649.

Any profit which the fiduciary makes through the self-dealing, he must account for to his principal, and may be recovered by the principal from the fiduciary. This would include the 9% commission charged upon each purchase for plaintiff in “Managed Funds.” In Wobbe v. Schaub, 143 Ill. App. 361, 369, it was held:

“ ‘It is universally held that a trustee employing the trust funds in his own business or for his own benefit is liable for interest thereon, upon the. principle that he shall derive no gain, benefit or advantage from the trust fund, and whatever profit may be made therewith properly belongs to the trust estate.’ 28 Am. & Eng. Enc. of Law (2nd Ed.) 1081, and cases cited.”

Likewise, if the “Group Securities” sold by defendant, and the proceeds invested in “Managed Funds,” had greater value at the time the account with plaintiff was closed on October 3, 1950, than her securities in “Managed Funds,” defendant would be liable for such increase in value which was lost to plaintiff. We cannot reconcile the recommendation of the master, that the instant complaint should be dismissed for want of equity, in the light of his finding:

“It is true, of course, that some benefit accrued to the defendant from the change [meaning the change from “Group Securities” to the investment in “Managed Funds”], in that the principals of the defendant were also the principals of Managed Funds. Thus, the defendant obtained commissions that it would not have otherwise obtained, since the profits obtained from Managed Funds inured to the benefit of the defendant rather than to strangers.”

We cannot agree with the master’s finding that defendant has fully accounted to the plaintiff, and that she was apprised of each of the transactions with the defendant. True, its statements to plaintiff showed investments in “Managed Funds,” but the record is barren of evidence that plaintiff knew that defendant organized, owned and controlled “Managed Funds, Inc.,” and that it was engaged in self-dealing. Nor was plaintiff apprised that defendant, as a fiduciary, had no legal right to charge her 9 Jo commission upon each purchase involved in the self-dealing transactions. Where such knowledge is lacking, ratification of defendant’s conduct, as fiduciary, cannot be claimed.

We think upon this record plaintiff is entitled to an accounting as to the 9% commission referred to, as well as for any ultimate loss she sustained by reason of the conversion of “Group Securities” into “Managed Funds.”

Accordingly, the decree is reversed and the cause remanded with the directions to re-refer the cause to a master to consider the evidence already received on the prior hearing and such additional evidence as may be offered by either of the parties, and for a further accounting in harmony with the views herein expressed.

Reversed and remanded with directions.

KILEY, J., concurs.

LEWE, P. J., took no part.


author: PRESIDING JUSTICE FRIEND

text:
    Standard International Corporation, Appellee, v. Alert Steel Company, Appellant.
    Gen. No. 46,761.
    First District, First Division.
    May 7, 1956.
    Released for publication June 12, 1956.

      Abrams & Linn, of Chicago, for defendant-appellant; Hyman Abrams, David Linn, and Fred D. Jasmer, all of Chicago, of counsel.
    Rappaport, Clorfene & Rappaport, of Chicago, for appellee; Ode L. Rankin, and Hamilton Clorfene, both of Chicago, of counsel.
   PRESIDING JUSTICE FRIEND

delivered the opinion of the court.

Plaintiff (seller) brought suit to recover a balance allegedly owed by defendant (buyer) for goods sold and delivered. The defense interposed was accord and satisfaction; The trial court was of the opinion that there was no bona fide dispute existing between the parties and therefore no accord and satisfaction. Accordingly, judgment was entered against defendant in the sum of $1252.80. Motion for new trial was overruled, and defendant appeals from the judgment entered.

Both parties deal in steel and steel products. Plaintiff’s offices are located in New York City, defendant’s in the City of Chicago. On June 21, 1951 defendant sent its purchase order to plaintiff for 100 tons of galvanized steel sheets which plaintiff had received from overseas and which was then lying in dock in New York harbor. The steel sheets were of two different gauges, priced at $14.50 per 100 pounds. June 26, 1951 defendant received a written acceptance or confirmation of the order. This acceptance by plaintiff stated that the weights shown were approximate and subject to further determination. Delivery was to be made and was made f. o. b. in two New York Central gondola cars for crane unloading, consigned to defendant at New York. Defendant was purchasing the steel for resale and shipment elsewhere. Plaintiff notified defendant that it had turned this shipment over to the New York Central Railroad in New York subject to the order of the defendant, as per a direction in defendant’s order. Defendant thereupon directed the railroad to ship the goods to Massey-Harris Company in Batavia, New York, with whom defendant had meanwhile contracted for their resale. The goods were not shipped to defendant directly; defendant never saw the goods or actually had them in its possession. The New York Central weighed the steel and reported the weights to the parties as 72,460 and 132,920 pounds, respectively, for the two cars, or a total of 205,380 pounds. Plaintiff relied upon these weights and billed defendant for $29,780.10; defendant likewise relied upon the railroad weights and billed its customer, Massey-Harris Company, accordingly.

Subsequently defendant received debit memoranda from its customer in Batavia, which had an official weight scale. These memoranda asked for a credit for an alleged shortage in the net weight of the material. Defendant subsequently allowed the credit to its customer. The difference is represented by the item of $1252.80 which is the subject of this dispute.

Plaintiff contends that in order to avoid weighing the steel twice, once for sale and again for freight charges, “the parties followed custom and for the purpose of their contract the weights to be found by the railroad when it should have loaded the steel and weighed it over their scales for computations of freight charges were to be used as the weights of the steel sold to defendant and on which the sum due was to be computed.” However, as heretofore stated, the acceptance by plaintiff of the order for steel stated that the weights shown were approximate and subject to further determination.

By reason of the discrepancy in weights, there ensued an extensive discussion by mail, telegraph and telephone between the parties. Plaintiff maintained that defendant should pay the full amount of the invoice which it had rendered to defendant. On the other hand, defendant contended that it should receive a credit for the purported shortage in weight, in accordance with the request set forth in its debit memoranda. To substantiate its claim and at the express request of plaintiff, defendant mailed copies of its correspondence with the Massey-Harris Company to plaintiff. On August 14, 1951 plaintiff wrote a letter to defendant offering to settle their differences by making an allowance of 500 pounds per car, and requested a check for the balance. The parties did not settle their dispute on this basis, but further discussions and negotiations took place in September 1951 concerning defendant’s request for credit totaling $1252.80. Plaintiff never allowed this request and wrote and telegraphed defendant demanding full payment.

On September 13, 1951 defendant issued its check in the amount of $16,400 which reflected the deduction of its claim for shortage in the sum of $1252.80; it had made previous payments to plaintiff on this contract. The check of September 13, 1951 was payable to the order of plaintiff and bore the written notation “In full settlement of account to date 9/13/51.” Plaintiff deposited this check to its account in a New York bank and retained the proceeds thereof. It made no protest to defendant at the time it received this payment. The check was not returned to defendant, and there is no evidence of any further negotiations or discussions between the parties following the acceptance of this check. However, on September 25, 1952, more than a year subsequent to plaintiff’s cashing of this check, it brought suit in the Municipal Court of Chicago, claiming recovery for the alleged balance due on this contract. The amount sought was the same amount defendant had deducted for its credit — $1252.80—and for which the judgment appealed from was entered.

There is substantially no dispute between the parties as to the legal principles governing accord and satisfaction. Where a balance claimed due by a creditor is fairly in dispute, the controversy renders the claim unliquidated. Nassoiy v. Tomlinson et al., 148 N. Y. 326, 42 N. E. 715; Bingham v. Browning, 197 Ill. 122; Dewar v. Loy, 248 Ill. App. 396; In re Silver, 109 F. Supp. 200. Where a claim is unliquidated or disputed, the acceptance and use of a remittance tender “in full” of the claim amounts to an accord and satisfaction of the entire obligation; see the Nassoiy and Bingham cases cited above; and also In re Estate of Cunningham, 311 Ill. 311; Economy Fuse & Manufacturing Co. v. Standard Elec. Mfg. Co., 359 Ill. 504; Krumrine v. Wilbur E. Howett Co., 311 Ill. App. 243; Quinlan & Tyson, Inc. v. National Casualty Co., 311 Ill. App. 369.

Plaintiff emphasized the fact that no evidence was presented at the trial proving the alleged shortage in weight of the goods concerned, i. e., no direct evidence that Massey-Harris had weighed the shipment and found it short. However, the defense in this case was not weight shortage but accord and satisfaction based upon an existing bona fide dispute between the parties. The significance of this difference is that plaintiff seeks to change the type of proof required of defendant from accord and satisfaction to proof of short weight which was not the controversial issue.

On the question of good faith, the letter from Massey-Harris to defendant unequivocally indicates an absence of any fraud or dishonesty on the part of defendant in making its claim for credit; and this memorandum was never offered in evidence for any other purpose. From an examination of the record we are satisfied that this was a disputed claim between the parties, and that defendant acted in good faith throughout the discussions had. The following uncontradicted evidence justifies this conclusion: The fact that defendant was notified by its customer of an alleged shortage in weight; that defendant thereupon notified plaintiff thereof and asked for a credit on the account; that defendant also sent copies of its correspondence with Massey-Harris to plaintiff, at plaintiff’s specific request, to substantiate the claim; that plaintiff did not allow the claim as presented, but that after-wards, in a letter, plaintiff offered to allow a portion of that claim, which offer was not accepted by defendant; that defendant tendered its check “in full settlement of account to date 9/13/51” during the time when this dispute was in existence; and that plaintiff cashed the check while admittedly aware of the fact that defendant was controverting the balance claimed by plaintiff. There is nothing in these circumstances suggesting dishonesty or lack of faith on the part of defendant; and it establishes a “dispute” under the holdings of cases dealing with the subject of accord and satisfaction.

For the reasons indicated, we are of the opinion that the court erred in entering judgment in favor of plaintiff. The judgment of the Municipal Court is therefore reversed.

Judgment reversed.

BURKE and NIEMEYER, JJ., concur.


text:
    Donald Knigge, Appellant, v. Henry Berenz, and Robert Chudzik, Appellees.
    Gen. No. 46,774.
    First District, First Division.
    May 7, 1956.
    Released for publication June 12, 1956.
    Tom L. Tates, of Chicago, for appellant; William Parker Ward, of Chicago, of counsel.
    Milton H. Tuttle, of Des Plaines, for appellees; Frank M. Opeka, of Chicago, of counsel.
   PRESIDING JUSTICE FRIEND

delivered the opinion of the court.

On September 29, 1952 plaintiff’s automobile collided with a hay baler and tractor owned by the defendant Harry Berenz and driven by the other defendant Robert Chudzik, causing injuries to plaintiff and damage to his automobile. Thereafter plaintiff retained counsel and brought suit in the Superior Court of Cook County to recover damages for injuries alleged to have been suffered by him. Defendants appeared by counsel, filing an answer, • and a counterclaim was filed on behalf of Berenz. Issue was joined in the Superior Court on December 15,1952, where the matter remains undisposed of.

Plaintiff carried a collision insurance policy covering damages to his car, and following the accident he had the automobile repaired. The insurance carrier, having become subrogated to plaintiff’s rights to the extent of its payment under said policy, and without knowledge of plaintiff, on February 16, 1953, commenced suit in the County Court. Defendants appeared through their attorney, who also represented them in the Superior Court suit, and filed an answer, and a counterclaim on behalf of Berenz asking judgment in the sum of $4500. Through an error in docketing in the office of counsel for the insurance company its counsel was not present when the case was called for trial. Accordingly, the County Court, on October 20, 1954, entered judgment finding that plaintiff should take nothing by his complaint, permitted the filing of an amendment to the counterclaim reducing the ad damnum to $2000 which represented the maximum limit of the County Court jurisdiction, and entered judgment in favor of counterplaintiff in that amount.

Some two weeks later counsel for the insurance company moved to vacate the judgment and in support thereof filed a petition, as well as a supplemental petition. The County Court, on November 24,1954, vacated the judgment order with respect to the counterclaim but refused to disturb the finding that plaintiff should take nothing by his complaint. That same day counsel filed a motion in the nature of writ of error coram nobis in the County Court, stating that defendants would rely on the judgment order of October 20, 1954 as a bar to plaintiff’s suit in the Superior Court, asserting that the entry of the order of default was void for want of jurisdiction, and alleging that the judgment was entered by mistake of fact as to whether or not a default had occurred by reason of plaintiff’s absence from trial, and counsel asked that the court vacate in its entirety the order of October 20, 1954. However, his motion was denied, the court on April 7, 1955 confirming that portion of the judgment order reading: “Therefore it is considered by the Court that the Plaintiff take nothing by his suit.”

Approximately a month later, on May 6, 1955, plaintiff, through his personal attorney who represented him in the Superior Court and who had been given leave to intervene in the County Court proceedings, likewise filed a motion in the nature of writ of error coram nobis stating that plaintiff and his personal attorney were unaware that a suit on behalf of plaintiff had been filed in the County Court, that they were unaware of plaintiff’s default, that the trial judge in the County Court was not informed of the limited nature of the claim in his court nor of the pendency of the Superior Court proceeding — although such information was within the knowledge of defendants and their counsel — and that if the judge in the County Court had been so informed he would not have proceeded with the trial of the cause on October 20, 1954, nor would he have entered his judgment order of that date, and counsel added that if the court failed to vacate that order and any subsequent confirming order plaintiff would be estopped from prosecuting his claims against defendants for damage to his property or injuries to Ms person; and accordingly plaintiff prayed that the court vacate the judgment order of October 20, 1954 and any subsequent confirming order. This motion, too, was denied by the court on May 19, 1955.

Plaintiff is appealing from: the order of October 20, 1954 finding that plaintiff take nothing by his suit; the order of April 7, 1955 confirming said judgment order, overruling plaintiff’s motion to strike certain portions of defendants’ answer to the motion in the nature of writ of error coram nobis filed November 24, 1954, and denying plaintiff’s motion in the nature of writ of error coram nobis; and from the order of May 19, 1955 denying plaintiff’s motion in the nature of writ of error coram nobis filed May 6, 1955.

Plaintiff argues that he was not in default at the time the case was called for trial by the County Court and an adverse judgment entered there since, as he views it, the finding by the County Court that a default had occurred was based on a mistake of fact which should have been rectified by vacating the order. Further, he states that the power of a court to enter an order of default is limited by subdivision (5) of section 50 of the Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110 [§ 50, suhd. (5)]) to two grounds, namely “want of an appearance” and “failure to plead,” and he argues that neither ground existed at the time the matter was called for trial. Additionally, he urges that the court had no jurisdiction to act on defendant Berenz’ counterclaim for the recovery of $4500, since the jurisdiction of the court is limited to actions at law wherein the amount in controversy does not exceed $2000, that any order of the court with respect to the counterclaim was therefore void because of the jurisdictional defect, and that the counterclaim could not become the basis for default. However, the record discloses that when the cause was reached on the day set for trial, the court had before it the complaint, the answer of defendants, and the counterclaim of defendant. Plaintiff had filed no answer to the counterclaim, as ordered by the court. Accordingly, we think the order of default for failure to plead to the counterclaim was proper.

Plaintiff takes the position that his failure to appear had no other effect than to authorize the court to dismiss the cause, and cites Caldwell v. McCay, 65 Ill. App. 405, and People v. Reuter, 88 Ill. App. 586. We think the point is well taken. The statute (Ill. Rev. Stat. 1955, ch. 110, sec. 52) precludes a plaintiff from voluntarily dismissing his suit where a counterclaim is pending, but does not preclude the court from dismissing plaintiff’s suit for want of prosecution. Instead of deciding the case on its merits and entering judgment “that the Plaintiff take nothing by his suit,” the court, by reason of plaintiff’s default, should have dismissed his suit for want of prosecution.

Accordingly, the judgment order of October 20,1954, is reversed, and the cause remanded with directions that plaintiff’s suit be dismissed for want of prosecution. The order vacating judgment on the counterclaim is affirmed, as are the orders denying motions in the nature of writs of error coram nobis.

Judgment order of October 20, 1954 reversed, and cause remanded with direction; subsequent orders (except that portion of the order of November 24,1954 confirming the finding against plaintiff) affirmed.

BURKE and NIEMETER, JJ., concur.


author: JUDGE NIEHEYER BURKE, J.,

text:
    Julius B. Goldberg, and Hal D. Cantin, Appellees, v. Omer W. Schroeder, and Frank P. Celeste, Defendants. On Appeal of Omer W. Schroeder, Appellant.
    Gen. No. 46,758.
    First District, First Division.
    May 7, 1956.
    Released for publication June 12, 1956.

      BURKE, J., dissenting.
    Ettelson & O’Hagan, of Chicago, for appellant; Leonard B. Ettelson, and Robert E. Samuels, both of Chicago, of counsel.
    Shaffer, Seelig, Handel & Shapiro, of Chicago, for appellees; David Edward Halfar, and Ellis Shaffer, both of Chicago, of counsel.
   JUDGE NIEHEYER

delivered the opinion of the court.

Omer W. Schroeder, hereinafter called defendant, appeals from an order overruling his motion to vacate a judgment by confession for $100,295.49 entered January 24, 1955 against him and Frank P. Celeste, hereinafter sometimes called co-defendant, as signers of an installment judgment note dated Chicago, Illinois, November 13, 1954 and payable to plaintiffs in the principal sum of $95,000.

Defendant appeared specially for the sole and limited purpose of objecting to the jurisdiction of the court over his person, and moved to vacate the judgment on the ground that the purported warrant of attorney on which the judgment was confessed was void. Plaintiffs moved to strike the motion and the special and limited appearance of defendant. The latter answered the motion to strike, attacking the constitutionality of Rule 47, section 3 of the Circuit Court of Cook county on which plaintiffs’ motion was in part based. No evidence was heard. No order was entered on plaintiffs’ motion to strike. The motion to vacate the judgment was overruled.

In the motion to vacate defendant alleges that the purported promissory note on which the judgment was confessed is not the original note it purports to be, but is a carbon copy; that the only true warrant to confess judgment on any note in the sum of $95,000 dated November 13, 1954 signed by defendant is in an original installment note drafted pursuant to the terms of an agreement, a copy of which is marked Exhibit A and attached to and made a part of the motion; that the original note was never delivered by the makers to plaintiffs or either of them, because, as particularly appears from Exhibit A, its delivery was conditioned upon the note being signed by four persons (First Parties to the agreement) and upon approval by the makers of the note and others (Second Parties) of certain audits; that neither condition was fulfilled, and the note and warrant contained therein are void and of no effect.

Exhibit A is a copy of an agreement “made and entered into at Chicago, Illinois this 13th day of November 1954” by and between defendant, Maxine Schroeder, Frank P. Celeste and Margaret Celeste, collectively called First Parties, and plaintiffs, collectively called Second Parties, under the terms of which Second Parties agreed to sell and First Parties agreed to purchase all right, title and interest of Second Parties (whatever, if any, such interest may be) in the stock of Bagley-First-State Corporation and Town House Corporation, at a price to be determined by an audit of the respective corporations to cover all of the cash advances by the Second Parties, plus all management and accounting fees, computed as of the close of business on November 30,1954, except that in no event shall the purchase price be less than $100,000 plus the management and accounting fees as determined by the audit, or more than $130,000 — the minimum of $100,000 to be paid: $5,000 in cash on the execution of the agreement, and $95,000 evidenced by the promissory note of the First Parties, payable in the amounts and at the times stated in the agreement, and the amount in excess of $100,000 as determined on the completion and acceptance of the audit by all the parties to the agreement and evidenced by the promissory note of the First Parties, payable in the amounts and at the times specified.

The agreement further provided that immediately upon the payment of the $20,000 payable under the terms of the note for $95,000, on or before January 10, 1955, the resignations of the respective plaintiffs as officers and directors of the respective corporations shall be effective without the execution of any further writings or instruments, and the right, title and interest (if any) of the Second Parties in the stock of the corporations shall be transferred to defendant and Frank P. Celeste; that all obligations and promises of the First Parties and Second Parties under the contract are joint and several.

In the affidavit in support of the motion to vacate the judgment defendant states that he has read the motion and the same is true; that on or about November 13,1954, at Chicago, he signed an installment promissory note for the sum of $95,000, and an agreement bearing that date, a copy of which is attached to the motion to vacate; that pursuant to the agreement the original note was to be delivered when the audit referred to in the agreement had been completed and accepted; that at the time of executing the agreement Frank P. Celeste, co-defendant herein, took the original note, agreement and other papers with him, and, as of the date of the affidavit (February 10, 1955), the note was still in the possession of Celeste and had not been delivered to plaintiffs, or either of them; that affiant is unable to state by what means a copy of the note came into the possession of plaintiffs; that before the note was to be delivered it was to be signed by the First Parties as a condition precedent to the effectiveness of the agreement and all of the signatures were never affixed thereto; that the audit was never accepted by all the parties to the agreement and the defendants have never received from the plaintiffs all their right, title and interest in and to the stock of the two corporations.

Plaintiffs moved to strike the motion and the special and limited appearance of defendant on the grounds that it did not appear on the face of the record that the warrant was invalid or that for any other reason the court was without jurisdiction to enter judgment— a condition of a motion to vacate a judgment by confession under Eule 47, section 3 of the rules of the Circuit Court of Cook county; that the petition was insufficient, as a matter of law, to be treated as a motion to open the judgment; that the motion and affidavit attached thereto fails to set up a defense to the merits and is insufficient under Eule 47 of the Circuit Court of Cook county and Eules 26 and 15 of the Supreme Court of Illinois [Ill. Rev. Stats. 1953, ch. 110, §§ 259.26, 259.15]; that the affidavit is insufficient as a matter of law in that it attempts to vary the terms of the note, warrant of attorney contained therein, and the agreement referred to in the motion and affidavit. In answering the motion to strike, defendant urged the unconstitutionality of Eule 47, section 3 of the rules of the Circuit Court of Cook county under the constitutions of the State of Illinois and the United States.

Defendant’s motion is a motion to vacate the judgment for want of jurisdiction of his person and is unlike a motion to open a judgment for the purpose of interposing a defense. As we have previously held, in Green v. Walsh, 5 Ill.App.2d 535, it is not necessary that the defendant show a meritorious defense to the note; Rule 26 of the Supreme Court of Illinois regulates the practice on motions to open up judgments by confession and does not purport to cover motions to vacate such judgments for want of jurisdiction; Rule 47, section 3 of the rules of practice of the Circuit Court of Cook county, in so far as it purports to deny the right to vacate a judgment by confession for want of jurisdiction except where the defect appears on the face of the record, is invalid.

As also held in Green v. Walsh, jurisdiction of the person of the defendant is acquired by the entry of his appearance under authority granted in the warrant of attorney. If for any reason the warrant of attorney is void or ineffective, the judgment is void for want of jurisdiction unless the lack of jurisdiction is waived by entering a general appearance. May v. Chas. O. Larson Co., 304 Ill. App. 137. In the instant case, as in Green v. Walsh, defendant appeared specially for the limited purpose of questioning the jurisdiction of the court by moving to vacate the judgment for want of jurisdiction. The question presented is whether the facts stated in the motion and the affidavit supporting it show a lack of jurisdiction.

The grounds urged for vacating the judgment are, that the instrument attached to the complaint is a carbon copy and not the original judgment note and warrant of attorney it purported to be; that the original note was never delivered to the plaintiffs, or either of them, and that it was never a binding obligation because of the failure of all the First Parties to the contract to sign it, and because of the failure of all the parties to the contract to accept the audit referred to in the agreement. The motion and affidavit supporting it contain statements of the intent and purpose of certain acts done by them. These statements, without facts showing such purpose and intent, are conclusions of law. Aaron v. Dausch, 313 Ill. App. 524; Keefer v. United Elec. Coal Cos., 292 Ill. App. 36, 46.

From the motion and affidavit it appears, by proper statement, that the original agreement and note are in the hands of the co-defendant, Frank P. Celeste; that neither has been delivered to plaintiffs or either of them; that the instrument on which the judgment was confessed is a carbon copy of the original note and warrant of attorney; that defendant does not know by what means a copy of the note came into the possession of plaintiffs; that neither Maxine Schroeder nor Margaret Celeste, parties of the first part, signed the agreement or the note; that the audit specified in the agreement was never accepted by all the parties to the agreement. By the terms of the agreement the note evidencing the deferred payments of $95,000 was to be signed by all the First Parties — Maxine Schroeder and Margaret Celeste, as well as the defendant and his co-defendant. There is nothing before us indicating that either the agreement or the note was executed or intended to be executed in duplicate, and that the instrument on which the judgment was confessed is a duplicate original, as contended by plaintiffs. Neither is there anything before us to support plaintiffs’ argument that Maxine Schroeder and Margaret Celeste were to be merely sureties on the note.

The terms of the agreement do not support defendant’s contention that the note was not to become effective until the audit was completed and accepted by all the parties to the contract. The agreement expressly states that the note for $95,000 was to be signed by all the parties of the first part. Therefore the note was not a completed instrument binding the signers until signed by all the parties of the first part. Knight v. Hurlbut, 74 Ill. 133; Belleville Sav. Bank v. Bornman, 124 Ill. 200; Skiles-Bearick & Co. v. Brooks, 215 Ill. App. 500. The signing of the note by all the parties of the first part is a condition precedent to the validity of the note and warrant of attorney contained therein, and defendant has properly pleaded that fact. It follows, in the absence of an issue of fact, that the judgment confessed is void for want of a valid and binding warrant of attorney.

The allegation, in the motion to vacate, that the instrument upon which the judgment was confessed “is not the original of the installment promissory note it purports to be, but is a carbon copy of such a note,” is a statement of fact. It is, in legal effect, a statement that the instrument upon which the judgment was confessed is neither an original nor a duplicate. In common and legal acceptation of the word, a “copy” is not an “original.” Words and Phrases, Permanent Edition, Vol. 9, page 633. A duplicate is not a copy. People ex rel. Boche v. Chicago & E. I. Ry. Co., 315 Ill. 424, 427, and cases cited. In Hayes v. Wagner, 220 Ill. 256, where a contract had been executed in duplicate, each of the parties keeping an original, the court said (p.260):

“A duplicate is defined as a document which is the same, in all respects, as another instrument from which it is indistinguishable in its essence and operation. (10 Am. & Eng. Ency. of Law, — 2d ed. — 318.) Instruments are executed in duplicate so that each party may have an original, and one is not a copy of the other, but both are primary evidence. In order to introduce an original duplicate it is not necessary that the other should also be produced, but to admit secondary evidence of the contents of one it is necessary to show the loss of both. (1 G-reenleaf on Evidence, sec. 558.)”

Without pointing to anything in the record supporting their position, counsel for plaintiffs assert that the instrument on which judgment was confessed is a duplicate copy. Statements of counsel are not evidence. The sworn statement of defendant that the purported note attached to the complaint is a copy, stands uncontradicted in the record. The warrant of attorney before the court is a nullity and could not give the court jurisdiction of the person of the defendant.

The court erred in overruling defendant’s motion. The order is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

FRIEND, P. J., concurs.

BURKE, J.,

dissenting.

The judgment is regular on its face and is entitled to the same presumptions as to validity as would be indulged in favor of a judgment entered after service of process. Mitchell v. Comstock, 305 Ill. App. 360, 371. The execution and delivery of the note in suit is admitted by the appellant.

It will be noted that the apellant evades a discussion of the note on which the instant action is based. The fact that another note was executed and not delivered would not be a defense to the note in suit. There is no allegation by the appellant of the requirement for or lack of additional signatures in the note in suit. There is no provision in the agreement that the wives’ signatures were a condition precedent to the husbands’ liability. The wives were not given any interest in the stock. All consideration ran to the defendants. The additional security afforded by the wives’ signatures was solely for the benefit of the plaintiffs and could be waived by the plaintiffs. The agreement also provides that all obligations and promises of the parties are joint and several. The agreement does not support appellant’s contention that the note in suit was not intended by the parties to have immediate effect.

The agreement cannot be construed to require, as appellant argues, the approval of the audit as a condition precedent to any liability under the contract or the $95,000 note. It will be observed that the appellant does not deny the payment of the $5,000 in cash to the plaintiffs, which sum was to be paid simultaneously with the execution and delivery of the note for $95,000. The provisions of the note in suit are identical with the provisions of the note required to be made and delivered under the agreement. The agreement price of $100,000 was to be paid on the execution of the agreement by $5,000 in cash and a note for $95,000. A second note not to exceed $30,000 was to be executed for the balance of the purchase price above $100,000 as determined by a complete audit. The audit would not affect defendants’ liability under the $95,000 note.

The case of Green v. Walsh, 5 Ill.App.2d 535, has no application to the factual situation in the instant case. In the Green case we held that under the statute which fixes venue in which judgment may be confessed and limits entry of appearance under warrant of attorney to counties in which obligation was executed, or in which one or more of the defendants resides or in any county in which is located any property owned by any one or more of the defendants, any judgment entered in any other county whether entered in term time or in vacation, is void. In that case the affidavit of the defendants showed that the note was made, executed and delivered in Milwaukee and that at the time of execution, delivery and guaranty the defendants resided in Milwaukee and that they owned no property and did no business in Cook county from the time the note was executed to the day the judgment was entered. We held that the court had no jurisdiction to enter the judgment and that defendants proceeded properly in moving to vacate the judgment. In the case at bar the note was executed in Cook county. The Circuit Court of Cook county had jurisdiction to enter the judgment. The motion to vacate was inappropriate.

There is no basis in the record for any alleged defense of intent, nondelivery or conditional delivery. The appellant does not state any ultimate facts which would authorize the court to vacate or open up the judgment. His motion and affidavit consists solely of conclusions and immaterial allegations and is contradictory and uncertain. The order of the Circuit Court of Cook county should be affirmed.


author: JUDGE NIEMEYER

text:
    People of State of Illinois ex rel. Daniel T. Dragel, Appellee, v. Timothy J. O’Connor, Commissioner of Police of City of Chicago; Stephen E. Hurley, President, Albert W. Williams, and John J. Ahern, Members of Civil Service Commission of City of Chicago, Appellants.
    Gen. No. 46,828.
    First District, First Division.
    May 7, 1956.
    Released for publication June 12, 1956.

      John 0. Melaniphy, Acting Corporation Counsel of City of Chicago, of Chicago, for appellants; L. Louis Karton, Head of Appeals and Review Division, Sydney R. Drebin, and Harry A. Cooper, Assistant Corporation Counsel, all of Chicago, of counsel.
    Nathan Engelstein, of Chicago, for appellee.
   JUDGE NIEMEYER

delivered the opinion of the court.

Defendants, the Commissioner of Police and the members of the Civil Service Commission of the City of Chicago, appeal from a judgment ordering that a writ of mandamus issue forthwith directing and commanding them to correct the grades of the relator, hereinafter called plaintiff, in a police lieutenant’s promotional examination by increasing his seniority and average efficiency grades and to^ then place his name in its correct and proper position on the police lieutenant’s promotional eligible register.

The facts are not disputed. On August 16, 1935 plaintiff entered the classified service of the department of police of the City of Chicago as a police patrolman. After a leave of absence from 1943 to 1945 for military service he was restored to duty as a patrolman November 30, 1945. November 15, 1947 he was given leave of absence as a patrolman and served as micro-analyst in the detective bureau crime laboratory. After taking a promotional examination for sergeant of police he was certified and appointed a sergeant on May 1, 1953. Shortly prior thereto the title of micro-analyst had been dropped and an appropriation made for the unclassified position of police chemist, crime laboratory, detective bureau of the police department. May 2,1953 plaintiff applied for and was given a leave of absence as sergeant and has served continuously as police chemist at a salary of approximately $1,000 a year in excess £>f that paid to sergeants. In the latter part of 1954 he took a promotional examination for police lieutenant, receiving a total average grade of 81.10, broken down as follows: written examination 78.40, physical test 82.48, efficiency 88.83, seniority 70.00. On March 1, 1955 he was No. 55 on the promotional eligible register. After the eligible list had been posted plaintiff sought to have his efficiency and seniority grades increased and his position on the register advanced. The police commissioner asked the Civil Service Commission to increase his efficiency grade to 90.16, but on the hearing testified that it should be changed to 90.00. The trial court ordered that his seniority grade be increased to 73 and Ms efficiency grade to 90. These increases, with credit for military service, would give Mm a final grade of 85.248 and advance him 14 places on the eligible register. It is conceded that he is well qualified for the position of police chemist and that he has rendered exceptional service in that capacity. The efficiency grade given him on the examination was based on his service as chemist.

Section 9 of the Cities Civil Service Act (Ill. Rev. Stats. 1955, chap. 24%, par. 47) is in part as follows:

“The Commission shall, by its rules, provide for promotions in such classified service, on the basis of ascertained merit and semority in service and examination and shall provide, in all cases where it is practicable, that vacancies shall be filled by promotion.”

Sections 2 and 3 of Rule V of the rules and regulations of the Civil Service Commission, adopted pursuant to the foregoing direction, insofar as is material here, provide as follows:

Sec. 2: “No person shall be eligible for promotion from a position in any rank or grade to fill a vacancy in the next higher rank unless the position in which he is employed at the time of the examination is in the same branch and class of service as the position to be filled and unless such person is at the time of the examination actually employed in such branch and class, or is on leave of absence and is eligible for reinstatement.”

Sec. 3: “Credit for seniority shall be given only for actual service in the rank or grade from which promotion is sought, whether such service has been continuous or not. Seniority shall be computed as of the date of the examination. . . .”

By these rules the right to take a promotional examination is restricted to persons who at the time of the examination are actually employed in the next lower rank or grade in the same branch and class of service as the.position to-be filled, or who are.on leave of absence and eligible for reinstatement. Plaintiff’s right to take the promotional examination for lieutenant was based on his leave of absence as a police sergeant and his eligibility for reinstatement. The position of ■ chemist, even though it be in the crime laboratory of a detective bureau of a police department, is not in the same branch or class of service as the position of lieutenant of police. Furthermore, it was not a classified position in the civil service and could not create any right or status under the civil service of the city. In Hartman v. City of Chicago, 343 Ill. App. 103, certain temporary or 60-day appointees as patrolmen, who later qualified and were appointed as civil service patrolmen, sought to have their time of service as temporary patrolmen added to their time of service as civil service patrolmen in computing their pay under an ordinance which varied the rate of pay according to the length of service. The court said: “Plaintiffs could not by performing services as temporary patrolmen gradually acquire civil service rights: to permit such a practice would nullify the purposes of the civil service laws.” Later these same patrolmen sought to have the time of their service as temporary patrolmen added to their time in service as civil service patrolmen for the purpose of increasing their seniority rights in a promotional examination for sergeants of police, and the court, adhering to its opinion in the former case, said in People ex rel. Hartman v. Hurley, 345 Ill. App. 409 (abst.):

“. . . plaintiffs may not add their service as temporary patrolmen to their service as civil service patrolmen, in the one case for the purpose of determining their rate of pay, and in the instant case for the purpose of increasing seniority rights.” The principle stated in these cases controls the instant case.

Time served in an unclassified position of police chemist is not time of “actual service in the rank or grade from which promotion is sought” on which seniority rights may be determined under the rules of the commission. Credit in a promotional examination for actual service and efficiency in the rank and grade from which promotion is sought is given because such service tends to qualify the employee for the higher position, and efficiency in the lower grade is an index of fitness for the promotion sought. Efficiency in the job of police chemist is no more an indicator of fitness for the job of police lieutenant, which involves, with other duties, the commanding of men and the meeting of emergencies in preventing crime and apprehending criminals, than is fitness in the job of licensed pharmacist or chemist in private employment. Promotional examinations are restricted to employees in the classified service. It necessarily follows that efficiency which qualifies for promotion must be as an employee in a rank or grade of the classified service lower than the position to which promotion is sought. Plaintiff served only one day as a police sergeant. He has no record of service on which efficiency credit as a sergeant can be based. He is entitled to only the minimum credit for seniority and efficiency in the position of police sergeant.

The court erred in increasing the grades allowed him.

The judgment is reversed.

Reversed.

FRIEND, P. J. and BURKE, J., concur.


author: JUDGE NIEMEYEB

text:
    Michael J. Bransfield and Sons et al., Appellees, v. City of Chicago, a Municipal Corporation, Appellant.
    Gen. No. 46,846.
    First District, First Division.
    May 7, 1956.
    Rehearing denied June 4, 1956.
    Released for publication June 12, 1956.
    John C. Melaniphy, Corporation Counsel of City of Chicago, of Chicago, for appellant; James G. O’Donohue, and Brian M. Kilgallon, Assistant Corporation Counsel, both of Chicago, of counsel.
    Donovan, Sullivan & Jeffers, of Chicago, for appellees; John P. Sullivan, of Chicago, of counsel.
   JUDGE NIEMEYEB

delivered the opinion of the court.

Defendant appeals from a judgment ordering the issuance of a peremptory writ of mandamus directed to defendant, its officers and agents, commanding them to forthwith perform their respective legal duties with respect to the payment to the respective petitioners, holders of special assessment securities, of sums totaling $16,408.22 — charges of the County Clerk and County Collector theretofore deducted by the defendant from the amounts collected on delinquent special assessments by the sale of assessed properties to defendant.

The facts are not disputed. In 1930, 1931 and 1932 special assessments on thousands of parcels of land were unpaid and delinquent. Judgments were entered for these delinquencies and the parcels offered for sale. In default of other bidders, defendant bid in the parcels. The County Collector remitted to the defendant the money paid in at the sale, less the statutory costs of 88 cents on each lot, block, tract or parcel of land, being the County Collector’s and County Clerk’s costs and the printer’s fees, and an amount equal to one per cent of the amount of the sale, the County Collector’s commission for the sale of each lot, block, tract or parcel of land. These items were charged against each of the special assessment warrants from which the bonds of petitioners herein are payable.

In 1948 petitioners filed a petition for a writ of mandamus to compel the defendant and its officers to reimburse the special assessment warrants for these charges. Defendant pleaded laches as a bar to plaintiffs’ suit. On motion of plaintiffs the defense was stricken. Defendant does not question this action of the court. The error, if any, in strildng the defense is not argued and is waived. However, defendant argues that plaintiffs’ right to a writ of mandamus is barred by laches, but points to no evidence supporting this claim. There is none in the record. The defense, if it had been properly pleaded, is not tenable. As said in People ex rel. G-ramlich v. City of Peoria, 374 Ill. 313, a mandamus action, the contention “that relators’ action was barred by laches can not be sustained for it does not appear that any delay or neglect on the part of relators in bringing the action has misled appellees or caused them to adopt a course different from what they would have otherwise taken.”

Defendant’s further contentions are that article 84 — 94 of the Revised Cities and Villages Act (chap. 24, art. 84 — 94, Ill. Rev. Stats. 1955) authorizes the payment of the expense of collection of special assessments from the special assessment funds, and that the petition fails to set forth a clear and unequivocal right to the relief demanded.

From 1897, when the Boards of Local Improvements were authorized, to the present, the statute has provided that the expense of making and levying special assessments and special taxes shall be paid by the municipality out of its general fund, or general corporate fund. (Chap. 24, sec. 94, page 375, Hurd’s Rev. Stats. 1897; chap. 24, art. 84 — 94, Ill. Rev. Stats. 1955.) During that period, excepting the years 1901 to 1917, the statute has provided, by exception or proviso in section 94, that the municipality might, by the ordinance providing for the assessment, prescribe that a certain sum, not exceeding the percentum of the amount of such assessment named therein, be applied toward the payment of the costs specified in the section, and other costs of making and collecting the assessment. In the years between 1901 and 1917 this privilege of providing a fund to be applied to the payment of the costs specified and other costs of making and collecting the assessment, was limited to cities, towns and villages having a population of less than 100,000 inhabitants. (See amendments of 1901, 1917 and 1931; chap. 24, sec. 94, page 398, Hurd’s Rev. Stats. 1901; chap. 24, sec. 94, page 519, Hard’s Rev. Stats. 1917; and chap. 24, sec. 94, page 525, Smith-Hard Ill. Rev. Stats. 1931.) Since there is neither allegation nor proof that the defendant did, in the respective ordinances providing for the special assessments involved herein, exercise the privilege of prescribing a sam to be applied to the payment of the costs of making and collecting the assessments, these exceptions and provisos in section 94 are immaterial on this appeal.

The word “levy” as ased in section 94, in the phrase “expense of making and levying special assessments or special taxes,” inclades the collection of the taxes. “Levy” is defined in Webster’s New International Dictionary (2nd ed.): “To raise or collect, as by assessment, execation or other legal process.” In Gray v. Peoria Board of School Inspectors, 231 Ill. 63, 70, in speaking of the meaning to be given to the word “levy” as ased in the statate there ander consideration, the coart said:

“As applied to taxation this word is given a variety of meanings, among others the following: ‘To impose or assess;’ ‘to impose, assess and collect ander the aathority of law,’ ‘to raise or collect by assessment;’ . . . (25 Gyc. p. 207, and aathorities there cited.)”

The word as ased in section 94 has been constraed by oar Sapreme Coart as including the collection of the special assessment. In Kerfoot v. City of Chicago, 195 Ill. 229, 233, where the statate as it existed in 1899 was involved, the coart said:

“The estimate and assessment incladed the cost of making and collecting the assessment, amoanting to $4075.57, and the assessment was confirmed, inclading that item. Section 94 of the act concerning local improvements provides that these costs and expenses shall be paid by the city oat of its general fand. (Hard’s Stat. 1899, par. 600, p. 382.)” In Gage v. City of Chicago, 195 Ill. 490, 494, where the amendment of 1901 was under consideration, collection of the assessment was again included in the phrase “levying of the assessment,” the court saying:

“The petition herein was filed May 11, 1901, two days after the act amending the Local Improvement act of 1897 went into effect, May 9, 1901. (Laws of 1901, p. 101.) That act amended section 94 so as to restrict the right to. apply six per cent of the amount of the assessment toward the payment of the costs connected with the proceedings, and the costs of making and collecting such assessment, to cities having a population of less than 100,000. . . . This proceeding was instituted two days after the amendments took effect. It was then no longer lawful for cities having more than 100,000 population to include costs in the total amount of the special assessment.”

See McChesney v. City of Chicago, 205 Ill. 528, 529, 530; Lanphere v. City of Chicago, 212 Ill. 440, 442; City of Chicago v. Lake Forest University, 293 Ill. 165, 167 (amendment of 1917).

The cost of collecting the special assessment, being imposed on the defendant, the deduction of the 88 cents and one per cent items on each lot, block, tract or parcel of land bid in by defendant, was erroneous. The right of plaintiffs to these amounts is clear and unequivocal, and the issuance of the writ of mandamus was properly ordered.

The judgment is affirmed.

Affirmed.

FRIEND, P. J. and BURKE, J., concur.


text:
    People of State of Illinois ex rel. Patricia Bluett, Relator-Appellant, v. Board of Trastees of University of Illinois, a Public Corporation, Respondent-Appellee.
    Gen. No. 46,874.
    First District, First Division.
    May 7, 1956.
    Released for publication June 12, 1956.
    Tuohy & Quinn, of Chicago, attorneys and counsel, for relator-appellant.
    Ralph F. Lesemann, Legal Counsel, University of Ulinois, of Urbana, Albert E. Jenner, Jr., and.Prentice H. Marshall, both of Chicago, for respondent-appellee; Johnston, Thompson, Raymond, Mayer & Jenner, of Chicago, of counsel.
   JUDGE NIEMEYER

delivered the opinion of the court.

Relator (hereinafter called plaintiff), a student in the medical school of the University of Illinois in Chicago from October 1, 1949 to and including May 1953, appeals from an order striking her amended complaint and dismissing her action for mandamus to compel the defendant, The Board of Trustees of the University of Illinois, to vacate an order of expulsion of plaintiff entered July 22, 1954 by the Committee on Policy and Discipline of the Chicago Professional Colleges of the University of Illinois; to reinstate plaintiff as an active student in good standing on the rolls of the medical school and to permit her to take all necessary examinations to determine her right to advance to classes to which she would have been entitled had the order of expulsion not been entered. Plaintiff’s appeal to the Supreme Court was transferred to this court.

Plaintiff’s action is based on the want of a formal charge and a formal hearing at which she would be confronted with the accusing witnesses and given an opportunity to cross-examine them. Defendant attacks the sufficiency of the amended complaint and the power of the court in a mandamus proceeding to vacate the existing order of expulsion and award the further relief asked by plaintiff. As to the merits, defendant contends that in the procedure adopted and the action taken, plaintiff was not deprived of any legal right.

The material facts alleged will be stated briefly. In May 1953 plaintiff was suspended and prohibited from further continuing her course at the university. She was not informed- as to the cause of her suspension until on or about June 15, 1954, when she appeared with her attorney before the Committee on Policy and Discipline and was advised by the counsel for the university that she had been suspended for planning, intending and attempting to turn in an examination paper in an examination in physical diagnosis as her examination paper, which, in fact had been written by a Doctor Wong; that prior thereto, in examinations in a class in obstetrics and a class in pharmacology, she had turned in or caused to be turned in examination papers as her own which in fact had also been written by Doctor Wong. Mo witnesses were produced at the meeting to support the charges and no other evidence was heard than the testimony of plaintiff, not under oath, denying the charges. The committee on July 15, 1954, “After having given careful and thorough consideration to all the evidence before it pertaining to the charges of cheating, or attempting to cheat, in examinations in pharmacology, obstetrics, and physical diagnosis against Miss Patricia Bluett (plaintiff), including her own testimony,” as stated in the certificate of the secretary of the committee sent to plaintiff, unanimously found her guilty with respect to each of the charges and changed her status as a student under suspension to that of one expelled and dismissed from the College of Medicine, and recommended to the Dean of the college that she be accorded failing grades in her courses of pharmacology, obstetrics and physical diagnosis. Plaintiff petitioned the committee to reconsider its action, but the committee, after hearing the attorney for plaintiff, reaffirmed its previous decision expelling plaintiff from the university and thereafter failed, refused and neglected to reinstate plaintiff, although she continually made demands upon the committee for reinstatement.

Plaintiff denies her guilt of the charges of cheating or attempting to cheat in examinations, and further alleges that the charges were not sworn to and the only knowledge plaintiff had concerning them was the oral statement of the attorney for the university, herein-before mentioned, and that “the Committee in the presence of this Relator heard no evidence of any nature, either sworn or not sworn, which would tend in any manner to substantiate in any degree the charges as related by the attorney for the university,” and that the committee “denied her an opportunity of facing her accusers and denied her the right of cross-examining anyone who made any charge against her.”

Plaintiff concedes the right of the committee to expel a student for cheating or attempting to cheat in examinations, and that the court should not attempt to control the exercise of that power unless it is substantially abused. People ex rel. Latimer v. Board of Education of City of Chicago, 394 Ill. 228. No authorities are cited in plaintiff’s original brief to support her contention of a right to sworn charges and an open hearing in which she is confronted with witnesses and given the right of cross-examination. In the reply brief plaintiff’s counsel quote from 11 Corpus Juris, Colleges and Universities, page 998, and from Anthony v. Syracuse University, 130 Misc. 249, 223 N. Y. Supp. 796, page 807, to the effect that a college cannot dismiss a student except on a hearing in accordance with a lawful form of procedure, giving him notice of the charge and an opportunity to hear the testimony against him, to question witnesses and to rebut the evidence. The positive statement taken from 11 Corpus Juris is not repeated in 14 Corpus Juris Secundum, Colleges and Universities, in treating of the same subject, and the case of Anthony v. Syracuse University was reversed on appeal (224 App. Div. 487, 231 N. Y. Supp. 435). Moreover, both authorities are discussed and rejected in State ex rel. Ingersoll v. Clapp, 81 Mont. 200, where the court said (p. 215):

“Upon a consideration of the foregoing authorities we are impelled to the conclusion that to hold to the rule laid down in Commonwealth ex rel. Hill v. McCauley (3 Pa. Co. Ct. Rep. 77), and seemingly approved in Anthony v. Syracuse University, would lead to a wholly impractical and unworkable situation. As above pointed out, the president of the university has no authority to compel the attendance of witnesses at a hearing or to compel them to testify if they were present. To hold that the power of suspension could only be exercised after a hearing had been held such as is indicated in the cases last referred to, would be to hold that the power was practically ineffective, except where witnesses voluntarily attended and testified.”

The only Hlinois case directly in point brought to our attention is Smith v. Board of Education of Oak Park and River Forest Tp. High School, 182 Ill. App. 342, where a student was expelled for violating a rule forbidding membership in a high school fraternity. The expulsion was made without a formal hearing. In reversing the action of the trial court in ordering the return of the expelled student to school, the Appellate Court said (p. 346):

“In order to carry out the powers and duties of school directors or Board of Education of high school districts, no form of trial or hearing is prescribed. The powers are given, the duties are laid down and the Board of Education is authorized in a reasonable and parliamentary way to investigate charges ■ of disobedience or misconduct, and to suspend or expel any whom they may find guilty of any violation of any of their reasonable and valid rules.”

To the same effect are Vermillion v. State ex rel. Englehardt, 78 Neb. 107; State ex rel. Sherman v. Hyman, 180 Tenn. 99; Tanton v. McKenney, 226 Mich. 245.

The order appealed from is affirmed.

Affirmed.

FRIEND, P. J. and BURKE, J., concur.