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lection. After giving up the business they could not claim commissions, under the contract, on interest notes not then due and thereafter to be collected.

But if it were otherwise, there is another reason why the plaintiffs in error are not entitled to these commissions. The evidence shows that they collected moneys belonging to the defendant in error, but retained the same without making report thereof, and that they represented certain mortgage loans as still outstanding when in fact they had been fully paid to the firm. The course thus pursued was in gross violation of the duties owed to defendant in error. The law is that the agent is entitled to his commission only upon a due and faithful performance of all the duties of his agency in regard to his principal. Hafner v. Herron, 165 Ill. 242, 46 N. E. 211; Prescott v. White, 18 Ill. App. 322. "If the agent does not perform his appropriate duties, or if he is guilty of gross negligence or gross misconduct or gross unskillfulness in the business of his agency, he will not only become liable to his principal for any damages which he may sustain thereby, but he will also forfeit all his commissions." Story on Agency, § 331; 1 Am. & Eng. Ency. of Law (2d Ed.) 1101. "If the agent receives moneys and willfully suffers his principal for a long time to remain in ignorance that the debtor has paid, it is but equitable that the agent should be charged with interest, as in this case there is a clear default and breach of duty." 1 Am. & Eng. Ency. of Law (2d Ed.) 1094; Bedell v. Janney, 4 Gilman, 193. "In the application of this rule it makes no difference whether the result of the agent's conduct is injurious to the principal or not; in such case the misconduct of the agent affects the contract from considerations of public policy rather than of injury to the principal." Hafner v. Herron, supra; Young v. Hughes, 32 N. J. Eq. 372.

Under the facts disclosed by this record the plaintiffs in error were not entitled to the commissions in question, and the same were properly disallowed.

There being no error in the record, the judgment of the Appellate Court is affirmed. Judgment affirmed.

(222 Ill. 265)

LEIGH v. LAUGHLIN. (Supreme Court of Illinois. June 14, 1906. Rehearing Denied October 10, 1906.)

1. PARTIES-PERSONS INTERESTED IN RESULT. Where, in an action to recover possession of shares of corporate stock held by defendant as security for the payment of certain notes given by plaintiff to a third person for the purchase price of the stock, there was no claim that the notes had not been paid, and defendant's refusal to surrender the stock was not based on that ground, but on the ground that he had an interest in the stock, the seller of the stock was not a necessary party.

2. ABATEMENT-PENDENCY OF OTHER ACTION. In an action to recover possession of corporate stock held by defendant to secure the payment of notes given for the purchase price by plaintiff to the seller of the stock, the pendency of an action by plaintiff against defendant, commenced some time before plaintiff had paid the notes, was no bar.

3. EQUITY-REFERENCE TO MASTER-APPROVAL OF MASTER'S CONCLUSIONS.

Under Hurd's Rev. St. 1903, c. 22, § 39, providing that the court may upon default or upon issue being joined refer the cause to a master to take and report evidence with or without his conclusions, and chapter 90, § 6, providing that it shall be the duty of the master in chancery to perform all other duties which according to law and the practice of courts of chancery appertain to the office, the fact that a master's conclusions are approved by the chancellor, and a decree entered in conformity therewith does not show that the master exercised judicial power or render the reference

erroneous.

Appeal from Appellate Court, First District.

Action by Edward B. Leigh against Henry D. Laughlin. From a judgment of the Appellate Court affirming a decree for plaintiff, defendant appeals. Affirmed.

This is an appeal from a judgment of the Appellate Court for the First District affirming a decree of the superior court of Cook county finding appellee to be the owner of and entitled to the possession of 845 shares of the National Hollow Brake Beam Company, which are in the possession and name of appellant. This case is a branch of the litigation growing out of the case of Leigh v. Laughlin, lately before this court (211 Ill. 192, 71 N. E. 881), and the statement of facts in that case is complete, and it will therefore be unnecessary to restate all of the facts involved in the issues of this and that case. From the evidence it appears that in 1890 appellee purchased of Sarah Hein the stock involved in this controversy and gave his note for $3,000 payable to her order, and that of H. C. Buhoup for the same amount, payable to appellee's order and by him indorsed to her, in payment therefor, and it was agreed that the stock so purchased was to be held by appellant in trust to secure the payment of said notes. For many years thereafter appellee received the dividends on the said stock, and in their dealings together, which were extensive and complicated, appellee and appellant always treated said stock as the property of appellee. In 1898 the agreement involved in the case of Leigh v. Laughlin, supra, was claimed to have been made. A breach in the business relations between appellee and appellant, which prior to that date had been confidential and harmonious, took place in 1900, and appellee brought suit against appellant, which suit was finally determined in this court in favor of appellee, as above noted. Some months after the commencement of that suit appellee paid the Hein notes, and called upon the appellant to surrender the stock held in trust to secure

their payment, exhibiting to him the notes and a letter from Mrs. Hein's husband stating that the debt had been paid and authorizing the surrender of the stock. Appellant requested time to advise with his attorney in the matter and finally refused to deliver the stock, contending that it was within the agreement involved in the suit then pending and that he had a personal interest in the stock. Appellee endeavored to agree with appellant that said 845 shares of stock be incorporated in the suit then pending, by stipulation, which appellant refused to do, and this suit was thereupon brought. Upon the hearing before the master the issues were found in favor of appellee, and the chancellor, upon argument of exceptions to the master's report, approved the master's findings and entered a decree in favor of appellee.

The following grounds of reversal are urged in this court: First, that appellant has a legal or equitable interest in the stock in question and is entitled to hold the same for his protection; second, that Mrs. Hein is not a party to the suit, and that appellant cannot safely turn over the stock to appellee until her rights therein are fixed by the court; third, that the rights of appellee in and to said stock were litigated in the case of Leigh v. Laughlin; and, fourth, that the chancellor erred in referring this case to the master in chancery to take the proofs and report his conclusions.

John P. Ahrens and David S. Geer, for appellant. Shope, Mathis, Zane & Weber, and Eddy, Haley & Wetten, for appellee.

HAND, J. (after stating the facts). From the evidence it appears conclusively that the 845 shares of stock in controversy came into appellant's possession at the time of the Hein deal; that he held the same merely in trust for the purpose of securing the payment of the two notes, aggregating $6,000, given by appellee to Mrs. Hein in payment for the stock, and that the stock was treated by both parties as the property of appellee in all of the transactions between them until their disagreement in 1900. Appellant's evidence in this case consisted chiefly of the evidence taken on the trial of the case of Leigh v. Laughlin, 211 Ill. 192, 71 N. E. 881, and therefore the facts here are the same as relied on in that case for the purpose of establishing the fact that appellant had an interest in the stock involved in that suit. In that case this court said, in passing upon such facts (page 199 of 211 Ill., page 884 of 71 N. E.): "There was no evidence of any definite statement or admission that there was such a contract or interest as claimed by the defendant.

The parties were intimate friends, and the complainant said that it had always been his doctrine that they should divide every dollar they made as a result of any transaction, and he also indulged in many extravagant expressions of personal regard for the defend

ant; but all such statements and expressions were clearly insufficient to establish an agreement that the defendant was to have one-half of the shares of stock of the brake beam company. We do not think that the contract alleged by defendant was proved, and we agree in the conclusion reached by the Appellate Court." From a careful examination of the evidence in this case we are unable to see that the appellant has made any stronger or more conclusive case as to the ownership of this stock than he did in that case. While this stock was not there involved, the right to retain it is based by appellant upon the same facts proved by him in that case, and if the facts proved were insufficient in that case to sustain his contention, nothing in this record in any way justifies a change in the decision arrived at in that case.

As to the necessity of making Mrs. Hein a party to this suit, it is not claimed that the notes held by her were not paid by appellee or that she has any interest in this suit. It is merely insisted in support of appellant's second contention, that appellee's proof was not sufficient to justify appellant in surrendering the stock. Appellant did not base his refusal to surrender the stock on the ground the Hein notes had not been paid, but on the ground he had an interest in the stock. The possession of the notes in controversy by, the appellee was prima facie evidence of their payment (Cassem v. Heustis, 201 Ill. 208, 66 N. E. 283, 94 Am. St. Rep. 160), and appellant's contention that Mrs. Hein should have been made a party to the suit is without force.

As to the third contention, the suit of Leigh v. Laughlin was commenced a number of months prior to the payment of the notes in question. Appellee had no right to the possession of and was not entitled to receive the stock until the notes were paid, and the question of the ownership of said stock therefore could not have been, and was not, involved in that suit. Upon the refusal of appellant to surrender said stock to appellee, appellee made an effort to have appellant stipulate that the controversy as to this stock be disposed of in the case then pending in the circuit court of Cook county, but appellant declined to so stipulate. The stock here in controversy was not involved in the case heretofore disposed of by this court, and the pendency of that suit was not a bar to this suit.

As to the last point, it is provided by section 39 of chapter 22 of the Revised Statutes (Hurd's Rev. St. 1903, p. 229), that "the court may, upon default, or upon issue being joined, refer the cause to a master in chancery, or special commissioner, to take and report evidence, with or without his conclusions thereupon"; and section 6 of chapter 90 (page 1229) provides, among other things, that it shall be the duty of masters in chancery to "perform all other duties which, according to

the laws of this state and the practice of courts of chancery, appertain to the office." It does not follow that because the chancellor approved the conclusion of the master and entered a decree in conformity therewith, that the master exercised judicial powers or that appellant was deprived of a hearing before the chancellor. The record shows that objections were filed to the master's report, and, when overruled, that exceptions were filed and argued before the chancellor. It was not error to refer this case to the master to take the evidence and report his conclusions. Harding v. Harding, 180 Ill. 481, 54 N. E. 587.

There appearing to be no error in this record which requires a reversal of the decree entered in the lower court, the judgment of the Appellate Court affirming the decree of that court will be affirmed.

Judgment affirmed.

(222 III. 248)

HINTZ v. HINTZ.

(Supreme Court of Illinois.

June 14, 1906. Rehearing Denied October 11, 1906.)

DEEDS-VALIDITY-DURESS.

Where a husband and wife quarreled concerning the husband's interest in a building being erected on land standing in the name of the wife, and an encounter ensued in which the wife was cruelly treated, and immediately afterwards she visited a notary and executed a deed conveying to the husband such an interest as he had claimed, but the husband was not present at the time the deed was drawn, his conduct did not amount to duress or undue influence.

Appeal from Superior Court, Cook County; Joseph E. Gary, Judge.

Suit by Lilly Hintz against Adolph G. Hintz. From a decree in favor of defend

in the improvement of appellant's property and were to share the proceeds equally, and that the property involved in this suit was the result of their joint efforts in pursuance of said agreement.

The divorce issue was tried before Judge Brentano and a jury and a verdict was rendered finding the appellee guilty of extreme and repeated cruelty, as alleged in the bill. A decree of divorce was rendered accordingly, and the court retained jurisdiction to hear and determine the property rights between the parties. Subsequently the appellee filed a cross-bill, alleging substantially the same facts set forth in his answer to the origina! bill, claiming a half interest in the premises by virtue of said agreement; also that the deed mentioned in the original bill was executed in confirmation of his rights under said agreement, and praying for a partition and division of the premises. Lilly Arndt, the daughter of appellant, was made a party and filed a disclaimer to any interest in the property by virtue of the deed, adopted the answer filed by her mother to the cross-bill, and asked that the premises be restored to her mother. Upon the bill, cross-bill, and answers, before Judge Joseph E. Gary, on November 27, 1905, a decree was rendered, which found that, during all of the transactions and business connections in making various improvements and managing the property standing in the wife's name, the appellant and appellee advised and and consulted with each other, and that the premises described were the result of their joint efforts, money, enterprise, and industry; that appellee constructed buildings for other parties when not employed in the common enterprise, and earned money which he devoted to the payment of bills in the various

ant on his cross-bill and answer, complain- improvements of the property owned by himant appeals. Affirmed.

Appellant, Lilly Hintz, filed her bill for divorce in the superior court of Cook county against her husband, the appellee, Adolph G. Hintz, on the ground of extreme and repeated cruelty. She also alleged that on November 21, 1899, she executed a deed of conveyance for a 50-foot lot on Evanston avenue, in the city of Chicago, to her daughter, Lilly Arndt, and the appellee, and that the execution of said deed was procured by duress, fraud, and undue influence, was never delivered, and subsequently was destroyed; also that appellee had filed a bill for partition of said real estate, claiming an interest in the same under said deed, and that the proceedings and claim of title by appellee constituted a cloud upon her title, which she asked to have removed. Appellee answered the bill, denying the allegations of cruelty, and alleging, in substance, that he was the equitable owner entitled to a one-half interest in the real estate mentioned in the bill by virtue of an agreement entered into between himself and the appellant, by which they were to work together

self and wife, and also to the support of his family. The decree further found that they were owners, as tenants in common, of the premises in question, and that the deed executed by appellant to appellee and her daughter was not obtained by fraud and duress, without consideration, but was executed and delivered by appellant as her free and voluntary act and with full knowledge of its purport and legal effect, and that it was her intention and will to deliver said deed, which constituted a good conveyance, to appellee. To reverse this decree an appeal has been prosecuted to this court.

R. Wilson More (Lyman, Busby & Lyman, of counsel), for appellant. A. C. Noble (Quin O'Brien, of counsel,) for appellee.

WILKIN, J. (after stating the facts). No question is here raised as to the proceeding for divorce. Many errors are assigned on the decree settling the property rights between the parties, but the only one insisted upon is that the decree is not sustained by the law and the evidence. Our inquiry, in this condition of the record, must be

whether the facts proved are sufficient, under the law, to entitle appellee to the relief granted him.

The record is voluminous, containing the evidence both on the bill for divorce and the cross-bill of appellee. We will consider only such parts of it as in our opinion are necessary and proper in the decision of the foregoing question. It shows that appellant is of German descent and has been twice married. She lived with her first husband 11 years. Upon his death he left her some insurance money, which she invested in a piece of property on Baxter street, in the city of Chicago. After remaining a widow 7 years she married appellee. At the time of this marriage she owned the property on Baxter street, which was of the value of $2,000, subject to an incumbrance of about $500. Appellee had about $580 in money and owned some land in South Dakota, which he subsequently sold for $300. He was a carpenter by trade, and also drew plans, as an architect, for the construction of buildings. After the marriage the property on Baxter street was improved by their joint efforts and sold; both joining in the conveyance. They then bought and improved various other pieces of real estate, until that on Evanston avenue, now in controversy, was purchased. It was of the probable value of $6,250, and soon after the purchase was improved by the erection of a three-story brick and stone flat building of six apartments, and a six-room cottage in the rear. In the improvement of the various pieces of property owned by the parties after their marriage the appellee drew the plans and specifications, superintended the work, and at times worked himself. He drew the plans and specifications for the improvement on the Evanston avenue lot and assisted in making arrangements for a loan of $12,500 for the erection of the building. All of the deeds to the various pieces of property had been taken in the name of appellant. Appellee sold his South Dakota land, and claims he put the money derived from it, together with the cash which he had at the time of his marriage, into the various pieces of property acquired. There was no serious disagreement, controversy, or trouble between the parties until the time the Evanston property was about half completed, when a controversy arose as to the share or interest of appellee in that property. He claimed to be a tenant in common with his wife, which claim was disputed by her. A question arose with those who were to loan the money, with reference to certain liens or claims upon the property and the building certificate issued by appellee. These parties sent for appellant and informed her that if a change was not made they would loan no more money. On her return home a quarrel arose between her and her husband about his claim to an interest in the property. He informed her he would not do any

thing more towards superintending the building and would perform no work himself until his right was recognized by her in the form of a deed or some other conveyance. This demand brought on a personal encounter, in which she claims he knocked her down, used violent language towards her, seized her by the wrists and twisted them until they bled, and otherwise cruelly treated her. Immediately afterwards she went to the office of a notary public near by, and after some conversation with him executed the deed above mentioned, conveying onehalf of the premises to her husband and the other half to her daughter. She returned to the house and gave the deed to him, and he placed it in a drawer with other papers belonging to him. The execution of the deed did not, however, bring about a reconciliation, and they continued to disagree and quarrel with each other, even engaging at times in personal encounters. In about six weeks the appellant went to the drawer where the deed had been placed and took possession of and destroyed it. The husband subsequently filed a bill for partition, which was dismissed, and then appellant commenced the present suit.

The only question for determination is whether these facts are sufficient to title appellant to the relief prayed. The allegation of her bill is that the execution of the deed was procured by duress, fraud, and undue influence. The undue influence which will justify the setting aside of a deed must be of such a character as to deprive the grantor of free agency. Shea v. Murphy, 164 Ill. 614, 45 N. E. 1021, 56 Am. St. Rep. 215. To justify the setting aside of a deed on the ground of duress the grantor must at the time of its execution have been in such fear of his or her life or of bodily harm in case of refusal as to so affect the mind that the execution of the deed was not his voluntary act. Hagan v. Waldo, 168 Ill. 646, 48 N. E. 89. Mere vexation, annoyance, and threats of personal injury, or of imprisonment for which there is no ground, or threats of criminal prosecution, do not constitute duress, where no proceeding has been commenced and no warrant issued. We have held that showing the grantor a pistol, and slapping him, to induce him to sign a deed, which acts took place some time before the actual signing, did not constitute duress, where it appeared the grantor did not conclude to sign the instrument until after deliberation and taking advice. Rendleman v. Rendleman, 156 Ill. 568, 41 N. E. 223. Under these rules of law it is clear the evidence in this record does not sustain the allegations of complainant's bill. It cannot be denied that at the time of the marriage the husband had almost as much property as the wife. After that they made considerable money by buying, trading, selling, and improving property. He assisted in this work, and was probably entitled to as

The

much credit for the success as she was. During that time they had apparently no serious controversies, disputes, or personal encounters. Under such circumstances it would appear to be but equitable and just that he should share in the property so acquired, and this right seems to have been recognized by the wife in executing and delivering the deed to him. Suspicion arose in his mind that she was not intending to treat him fairly, culminating in a quarrel and personal violence to her shortly before the deed was executed. His conduct at that time was reprehensible, and he was certainly guilty of acts and the use of language which cannot be too strongly condemned, but the record is silent as to any act of fraud or coercion on his part at the time of the execution of the instrument or its delivery. duress and undue influence complained of consisted in threats which he is alleged to have made against her, and acts of violence, together with the use of indecent and obscene language in her presence, prior to the execution of the deed, at which time it is admitted she went of her own accord to the notary public and told him what she wanted to do. Appellee was not present at the time, and in fact it does not appear from the evidence that he even knew she intended to execute the deed. The threats, abuse, and assaults were not to compel her to make the conveyance, and in law did not amount to duress or undue influence. She was sui juris, possessed of all her natural faculties and acted voluntarily, being in no way compelled to make the conveyance. She could have abandoned him on account of his cruel treatment, and in her bill for divorce, by proper allegations, obtained a decree for alimony. Instead of pursuing that course she voluntarily made the deed and must abide the consequences. She may have acted unwisely-perhaps did-but courts cannot arbitrarily grant relief against acts of indiscretion and folly.

We are unable, after a painstaking consideration of the voluminous evidence in this record, to say that the chancellor committed error in his decree, and the same will accordingly be affirmed.

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even after the corporation complied with the statute.

[Ed. Note.-For cases in point, see vol. 12, Cent. Dig. Corporations, § 2544.]

Appeal from Appellate Court, First District.

Action by the United Lead Company against the J. W. Reedy Elevator Manufacturing Company. From a judgment of the Appellate Court affirming a judgment in favor of defendant, plaintiff appeals. Affirmed.

The Appellate Court for the First District affirmed the judgment of the circuit court of Cook county, which was in favor of appellee, in a suit in assumpsit brought in the latter court by appellant against appellee. A certificate of importance having been obtained, the cause is brought here by further appeal. The following statement of the facts is that of the Appellate Court:

"September 8, 1904, appellant, a New Jersey corporation, doing business in the state of Illinois, brought suit for goods sold and delivered, against appellee. On December 7, 1904, appellee moved to dismiss upon the ground that appellant, at the time of bringing suit and when the motion was made, was and is a foreign corporation doing business in Illinois, and had not filed with the Secretary of State its articles or certificate of incorporation and was not authorized to do business in Illinois. This motion was supported by an affidavit. Upon the hearing on this motion it was denied and appellee was given leave to file pleas instanter. In obedience to this order appellee filed the general issue and a special plea, which is, in substance, as follows: 'And for a further plea, by leave of court, defendant says that plaintiff is organized for profit, is not a railroad or telegraph company, nor in the insurance, banking or money loaning business; that the merchandise for which suit is brought was sold to defendant and by it brought within the state of Illinois since January 1, 1902; plaintiff had not at the commencement of this suit, as by the statute provided, filed with the Secretary of State its articles or certificate of incorporation,' statement of capital stock represented in Illinois, nor designated officer on whom service could be had; nor had the Secretary of State, at commencement of suit, issued certificate entitling plaintiff to do business in Illinois as provided by statute; nor had plaintiff, prior to or at the commencement of suit, been licensed to do business in Illinois as by statute provided; plaintiff at the time of commencement of suit had no certificate of authority, nor had any ever been issued to it, to do business in Illinois as provided by the statutes of said state. Wherefore, by force of the statute in such case made and provided, the plaintiff cannot maintain its aforesaid action. And this defendant is ready to verify. Therefore, it prays judg

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